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2007 DIGILAW 374 (RAJ)

Bhagwan Das v. Brij Mohan

2007-02-20

R.M.LODHA

body2007
JUDGMENT 1. - The original plaintiff is in appeal aggrieved by the judgment and decree dated 21st of April, 1989, passed by Additional District Judge No. 2, Bharatpur, whereby he affirmed the judgment and decree dated 3rd of June, 1983, passed by Additional Munsif No. 2, Bharatpur, dismissing his suit for eviction. 2. The dispute concerns a shop situate at Sarafa Bazar, Bharatpur. The description of the shop has been given in Paragraph 1 of the plaint. 3. In the suit filed by Bhagwan Das (the plaintiff) on 30.1.1974, against Brij Mohan (Defendant No. 1) and Gobind Prasad (Defendant No. 2), he sought their eviction on the ground of necessity and default. 4. The plaintiff averred that the suit shop initially belonged to one Champa Lai. The defendant No. 1 and the father of defendant No. 2 took the said shop on a monthly rent of Rs. 50/-. Champa Lal died and after his death the suit shop was purchased by the plaintiff from s his legal heirs for a sum of Rs. 15,000/-. The legal heirs of Champa Lai, vide notice dated 9th of June, 1972, intimated to the defendants about the sale of shop to the plaintiff. The defendants, thus, became plaintiff's tenant and the relationship of landlord and tenant came into existence between them. 5. As per the case set-up by the plaintiff, despite demand, the defendants failed to pay rent since 15th of May, 1972, and, thereby they became defaulter. 6. The plaintiff averred in the plaint that he has been carrying on business of Sarafa at his father's shop. He has now acquired sufficient 5 experience to do separate business and for that he needs the suit premises reasonably and bonafide. The defendant No. 1 has not been carrying business in the suit shop as he started his business elsewhere. The original tenant already dead and his son Gobind Prasad has been carrying on business in the suit shop of which he has no right under the Rajasthan o (Control of Rent and Eviction) Act, 1950. The plaintiff, thus, prayed that decree for eviction be passed against the defendants and they be directed to pay arrears of rent and also mesne profits. 7. The defendants filed written statement on 20th July, 1974 and traversed plaintiff's claim. The plaintiff, thus, prayed that decree for eviction be passed against the defendants and they be directed to pay arrears of rent and also mesne profits. 7. The defendants filed written statement on 20th July, 1974 and traversed plaintiff's claim. According to the defendants, that suit shop was is jointly owned by Champa Lal and Poonam Chand and it was jointly let out by them to the defendant No. 1 and the father of defendant No. 2 and from time to time the rent of the shop was increased which was presently at the rate of Rs. 50/- p.m. 8. The defendants denied that the plaintiff purchased the shop from the legal representatives of Champa Lal after his death. They did no accept that all the legal representatives of Champa Lal had sold the suit shop to the plaintiff. 9. The defendants set-up the case in the written statement that since the plaintiff has transferred the suit premises legally, no relationship of landlord and tenant between them has come into existence. 10. The defendants stated in the written statement that they tendered the rent to the plaintiff under the bonafide legal impression that payment of rent made to the co-lessor shall be treated in law the rent to the owners so that they do not incur liability of default. 11. The defendants denied the plaintiff's case of reasonable and bonafide necessity and pleaded that the plea of reasonable and bonafide necessity was false, fabricated and actuated with ulterior motive. The defendants denied that the defendant No. 1 was not carrying on business in the suit shop and that he was carrying on business in some other shop and that they were defaulters. In additional pleas the defendants submitted that the shop has been on rent with the fore-fathers of the defendants since 11th of January, 1943. Initially the rent was Rs. 10.50 p.m. which was increased from time to time and was Rs. 50/- at the time of filing of the suit. The plaintiff wanted to increase the rent from Rs. 50/- to Rs. 100/- and though they did not desire to increase the rent out of compulsion, they agreed for the rent of Rs. 100/- p.m. and accordingly purchased the stamp papers of Rs. 36/-. However, the plaintiff changed his mind and demanded the rent at the rate of Rs. The plaintiff wanted to increase the rent from Rs. 50/- to Rs. 100/- and though they did not desire to increase the rent out of compulsion, they agreed for the rent of Rs. 100/- p.m. and accordingly purchased the stamp papers of Rs. 36/-. However, the plaintiff changed his mind and demanded the rent at the rate of Rs. 150/- p.m. which was not acceptable to the defendants and, therefore, present suit has been filed malafide. 12. The defendants submitted that they did not have any other shop for their business nor any other shop is available in the market and if they are asked to vacate the premises, their whole family would be ruined. 13. The plaintiff filed rejoinder and submitted that the defendants have accepted the plaintiff as landlord and also tendered the rent to him but the plaintiff did not accept the rent as the same was not in accordance with law. According to the plaintiff, the defendants accepted themselves to be plaintiff's tenant and never accepted that Hazarilal's wife or his other children were the tenant in the suit shop. The plaintiff also averred in the rejoinder that the defendants can not challenge the sale deed dated 15.5.1972 whereby he purchased the shop from the legal representatives of late Champa Lai. 14. On the basis of the pleadings of the parties, the trial court framed 14 issues. Both the parties adduced oral as well as documentary evidence. The plaintiff, examined himself and the two other witnesses while on behalf of the defendants, besides themselves, they examined five other witnesses. 15. The trial court after recording the evidence and hearing the parties did not grant decree for eviction though the suit for recovery of arrears of rent was decreed vide judgment and decree dated 23rd January, 1983. 16. The judgment and decree passed by the trial court was challenged by the plaintiff as well as the defendants in two separate appeals before the Court of District Judge, Bharatpur. Both the appeals were transferred to the Court of Additional District Judge No. 1 Bharatpur for hearing and disposal. 17. It may not be out of place to mention here that the plaintiff made two applications for production of additional evidence before the appeal court. Both the applications were ordered to be heard at the time of hearing of the appeals. 18. 17. It may not be out of place to mention here that the plaintiff made two applications for production of additional evidence before the appeal court. Both the applications were ordered to be heard at the time of hearing of the appeals. 18. The appeal court by its judgment dated 21st of April, 1989, dismissed both the appeals and also dismissed the two applications under Order 41 Rule 27 made by the plaintiff. This is how the plaintiff has come in second appeal. 19. It transpires from the proceedings that on 30th August, 1989 the second appeal was admitted on four substantial questions of law. Thereafter on 20th December, 2006, three more substantial questions of law were framed. The seven substantial questions of law, which have been framed by this Court on 30th of August, 1989 and 20th December 2006, read thus : (1) Whether the finding of the first appellate court that the late Hazari Lal and Brij Mohan were tenants in common was not sustainable and whether they were only co-tenants carrying on business jointly in the shop in question? If so, what is its effect? (2) Whether no decree for eviction could be passed in favour of the appellant in the absence of the heirs of deceased Hazari Lal being made party in the suit? (3) Whether the finding of the first appellate court that the suit was not maintainable in the absence of all legal affairs of deceased Champa Lal is not correct and could only one co-sharer maintain the suit for eviction against the respondents? (4) Whether the question of comparative hardship has not been legally examined by the Lower Court? (5) Whether the tenant-defendant committed default in making the payment of monthly rent by not depositing the amount of arrears of rent under Section 13(4) of the Act, which was in force at the relevant time, at his own, and did not deposit the amount of arrears of rent as per the order of the lower court dated 5.4.1974? (5) Whether the tenant-defendant committed default in making the payment of monthly rent by not depositing the amount of arrears of rent under Section 13(4) of the Act, which was in force at the relevant time, at his own, and did not deposit the amount of arrears of rent as per the order of the lower court dated 5.4.1974? The tenant further committed a default in not making the payment of monthly rent for the month of July, August and September, 1975, therefore, the defendant was not even entitled for the benefit of sub-section (7) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which was in force at the relevant time, therefore, a decree of eviction is liable to be passed on this ground also? (6) Whether on the basis of admission in the written statement as well as the statement of DW-1 Brij Mohan and, DW-2 Gobind Prasad, there is a denial of title of the plaintiff in respect of rented property by the defendant and a decree of eviction can be granted on the ground of denial of tile even if there is no specific plea in the plaint and no issue was framed in this regard? (7) Whether the finding of both the courts below in respect of issue No. 3 relating to personal bona-fide necessity of the rented premises is perverse and the same is liable to be interfered with by this court and the decree of eviction is liable to be granted, or not, on the ground of personal bona-fide necessity? Re-Questions No. 1 and 2: 20. Tenancy in common is a form of ownership in English law whereby each tenant (i.e. owner) holds an undivided interest in property. Unlike a joint tenancy, the interest of tenant in common does not terminate upon his or her prior death (i.e. there is no right of survivorship). Tenants in common have joint interest in which there is unity of possession but separate and distinct titles. Joint tenants on the other hand have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time and held by one and the same undivided possession. The joint. tenants are persons who own lands by a joint title created expressly by one and the same deed or will. Joint tenants on the other hand have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time and held by one and the same undivided possession. The joint. tenants are persons who own lands by a joint title created expressly by one and the same deed or will. The primary incident of joint tenancy survivorship by which the entire tenancy of the deceased of any joint tenancy remains to the survivors and at length to the last survivor (Black's Law Dictionary, 1979 Edition). 21. In the case of Harish Tandon v. Addl. District Magistrate, Allahabad (1995) 1 SCC 537 , while dealing with the provisions of U.P. Rent Act, the Apex Court observed that heirs of the deceased tenant held the building as joint tenants and not as tenants-in-common. 22. The finding recorded by the appeal court that deceased Hazari Lal and Brij Mohan were tenants-in-common is legally unsustainable. As a matter of fact, from the written statement (Paragraph 2), it would be seen that as per the defendants own case the suit shop was initially let out to defendant No. 1 Brij Mohan and Hazari Lal-father of defendant No. 2. The rent was increased from time to time. Strictly speaking this was neither a case of joint tenancy nor tenancy in common but both Brij Mohan and Hazari Lal were co-tenants in the suit shop. The necessary requirement of tenancy-in-common is not at all met nor the evidence led by the defendants leads to that conclusion. The rent note dated 1st of June 1963, was executed jointly by Brij Mohan and Hazari Lal. It shows that both of them took the suit shop on rent from Champa Lal Bohre, for a monthly rent of Rs. 50/- and thus indicating that both Brij Mohan and Hazari Lal were co-tenants in the suit shop and were in possession thereof jointly. The appeal court erroneously held that business of Hazari Lal and Brij Mohan was that of a joint family firm and that both of them were occupying the suit shop as tenants-in-common. Because of this erroneous finding that Hazari Lal and Brij Mohan were tenants-in-common and not co-tenants holding the property jointly, the appeal court seriously erred in holding that after the death of Hazari Lal, his legal heirs also became tenants. Because of this erroneous finding that Hazari Lal and Brij Mohan were tenants-in-common and not co-tenants holding the property jointly, the appeal court seriously erred in holding that after the death of Hazari Lal, his legal heirs also became tenants. As a matter of fact, there is no evidence led by the defendants to prove that Hazari Lal and Brij Mohan were tenants in common and that after the death of Hazari Lal, the tenancy rights devolved on all the legal heirs of deceased Hazari Lal. The considerations of the evidence by the appeal court and its approach in dealing with the said questions is wholly erroneous and unsustainable in law. In any case not much difference is made legally since Gobind Prasad s/o Hazari Lal has already been impleaded as defendant No. 2 and that the estate of Hazari Lal was sufficiently represented. Non-impleadment of the other heirs of Hazari Lal can not be held to be fatal to the case of the plaintiff when Gobind Prasad was already impleaded as defendant No. 2. Merely because Hazari Lal and Brij Mohan happened to be brothers, no inference can be drawn in law that the business that was being carried on by both of them as co-tenants in the suit shop was joint family business. 23. The appeal court was not very clear about the proof of rent note Ex.16. At one place in Paragraph 10, the appeal court observed that the rent note (dated 1st of June 1963 Ex. 16) is not proved. In the same paragraph, a little later, the appeal court observed that the rent note bears signatures of Hazari Lal and Brij Mohan and was executed by both of them. The inference drawn by the appeal court from the said rent note that Hazari Lal and Brij Mohan were tenants-in-common, has already been noticed by me to be wrong for the reasons indicated above. 24. I, therefore, hold that the finding of the First Appellate Court that late Hazari Lal and Brij Mohan were tenants-in-common is not sustainable. Rather they were co-tenants carrying on business in the suit shop. I further hold that in view of impleadment of Gobind Prasad (the eldest son of Hazari Lal) in the suit, non-impleadment of other heirs of Hazari Lal is not fatal to the case of the plaintiff.Re-Question No. 3: 25. Rather they were co-tenants carrying on business in the suit shop. I further hold that in view of impleadment of Gobind Prasad (the eldest son of Hazari Lal) in the suit, non-impleadment of other heirs of Hazari Lal is not fatal to the case of the plaintiff.Re-Question No. 3: 25. That the plaintiff purchased the suit shop by registered sale-deed dated 15.05.1972 from the widow of Champa Lal, was not seriously contested by the defendants. The defence of the defendants was that all the legal heirs of Champa Lal had not sold the suit shop of the plaintiff. According to the defendants, Champa Lal had two wives namely Smt. Firoza and Smt. Raj Kumari; he had four sons from wife Smt. Firoza and four sons and four daughters from Smt. Raj Kumari and since all the legal heirs of deceased Champa Lal had not transferred the suit shop to the plaintiff, he did not acquire the complete rights in the suit shop. The First Appellate Court recorded the finding that the suit was not maintainable in the absence of all legal heirs of deceased Champa Lal. The question, that has to be considered by me is as to whether in the absence of all the legal heirs of deceased Champa Lal, the suit could be maintained? 26. The case set-up by the defendants that the suit shop was owned by Champa Lal and Poonam Chand is palpably false and can not be accepted on the face of the rent note dated 1st of June, 1963 (Ex. 16). As referred to by me above, the rent note dated 1st of June 1963 has been executed by Hazari Lal and Brij Mohan and it mentions unambiguously that the suit shop is of the ownership of Champa Lal Bohre s/o late Jasraj Bohre and that the said shop has been taken on rent for Rs. 50/- p.m. On the face of the rent note which records that the suit shop has been taken on rent from Champa Lal, their case that Poonam Chand was co-owner/co-lessor can not be accepted. 50/- p.m. On the face of the rent note which records that the suit shop has been taken on rent from Champa Lal, their case that Poonam Chand was co-owner/co-lessor can not be accepted. As a matter of fact, challenge to the right of widow of Champa Lal to sell the property in the absence of other legal heirs is not of much significance in view of their own case set-up in paragraph 12 of additional pleas that after the shop was purchased, the plaintiff wanted the rent to be increased to Rs. 100/- p.m. and though they did not desire to increase the rent, ultimately they agreed for increase of rent to Rs. 100/- p.m. and for that they also purchased stamps for Rs. 36/-. This clearly shows that the defendants accepted the purchase of the suit property by the plaintiff and also agreed to increase the rent. Not only that, the defendants also upon receipt of information of the purchase of the suit shop by the plaintiff tendered the rent of the shop to the plaintiff. How can in the back drop of these facts, the defendants deny the relationship of landlord and tenant or that the plaintiff did not lawfully purchase the suit shop. If their explanation regarding tender of rent is to be accepted that they tendered the rent to the plaintiff because they thought that the payment of rent to a co-lessor shall fully discharge their liability of rent is accepted, then the legal position is well settled that one of the co-lessors can maintain the suit for eviction. In India Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla, 2004 (1) WLC (SC) Civil 344 : (2004) 3 SCC 178 , the Apex Court held that a co-owner can maintain eviction suit without joinder of all the co-owners. It is because of implied agency that a co-owner acts for other co-owner as agent in filing a suit for eviction without joining other-owners consent to which is assumed unless shown to the contrary. 27. In Pal Singh v. Sunder Singh, (1989) 1 SCC 444 , the Supreme Court held that an eviction suit filed by the co-owner is maintainable where tenant was paying rent to plaintiff-co-owner and other co-owners were not objecting to the plaintiffs claim for eviction. 28. 27. In Pal Singh v. Sunder Singh, (1989) 1 SCC 444 , the Supreme Court held that an eviction suit filed by the co-owner is maintainable where tenant was paying rent to plaintiff-co-owner and other co-owners were not objecting to the plaintiffs claim for eviction. 28. The aforesaid legal position is high lighted by the Supreme Court in the case of Kanta Udharam Jagasia v. C.K.S. Rao, (1998) 1 SCC 403 , where again the Supreme Court ruled that a co-owner can maintain an eviction petition in absence of any objection from other co-owner. The Supreme Court further observed that when tenant was paying rent to such person, he can not raise objection in eviction petition that person was not his landlord. Thus, the finding recorded by the appeal court that the suit was not maintainable in the absence of all other legal heirs of deceased Champa Lal, can not be said to be legally correct and sustainable. The plaintiff is held to be competent to maintain the suit for eviction.Re-Question:-5 : 29. The aforesaid question relates to the ground of default. As a matter of fact the counsel for the plaintiff-appellant fairly conceded that before the first appellate court no argument was advanced by the plaintiff that the defendants committed defaults in making the payment of monthly rent by not depositing the amount of arrears of rent under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which was in force at the relevant time. The plea having not been raised by the plaintiff appellant before the first appellate court, I find no justifiable reason to permit the plaintiff to raise this plea in the second appeal for the first time. In my view, therefore, this substantial question of law has to be decided against the plaintiff-appellant and I order accordingly.Re-Question:-6: 30. In the plaint, the decree for eviction has not been sought on the ground of denial of title. The said ground was pressed into action in rejoinder based on the defendant's averments in the written statement that there was no relationship of landlord and tenant between the parties. 31. In my considered view the eviction on this ground (denial of title) can not be granted. The said ground was pressed into action in rejoinder based on the defendant's averments in the written statement that there was no relationship of landlord and tenant between the parties. 31. In my considered view the eviction on this ground (denial of title) can not be granted. Firstly because even in rejoinder, particularly paragraph 8, the plaintiff has admitted that the defendants have accepted him as landlord and that relationship of landlord and tenant was established between the parties and that the tenancy has been attorned; though in paragraph 12 of the rejoinder, the plaintiff has averred that the defendants having denied the title, he is entitled to decree for eviction. In view of the categorical stand set-up by the plaintiff in paragraph 8 of rejoinder that the defendants have accepted the plaintiff as their landlord and that the relationship of landlord and tenant is established between them, the plaintiff can not claim decree for eviction on the group of denial of title. In his deposition also, the plaintiff has testified that there was relationship of landlord between him and defendants; that the defendants treat him (plaintiff) as their landlord and they also treat themselves as plaintiff's tenant. Thus, on the basis of the averments made in the rejoinder and his own deposition, in my view plaintiff has miserably failed to establish the ground of denial of title as contemplated under Section 13(1) (f) of the Rent Control Act.Re-Questions No. 7 and 4: 32. These two questions relate to reasonable and bonafide necessity and the comparative hardship respectively. Both the courts below have recorded the finding against the plaintiff on the ground of reasonable and bonafide necessity. Though the findings on the question of reasonable and bonafide necessity and comparative hardship are the findings of fact, the question that is required to be seen is as to whether any error of law has been committed by the two courts below on the aforesaid issues justifying interference in second appeal. 33. The first appeal court observed that there was variance between the pleading and proof in the plaintiff's case relating to reasonable and bonafide necessity and, therefore, his case on this ground was not acceptable. 34. In the plaint, the plaintiff averred that for quite some time he has been carrying on business of Sarafa in his father's shop. 33. The first appeal court observed that there was variance between the pleading and proof in the plaintiff's case relating to reasonable and bonafide necessity and, therefore, his case on this ground was not acceptable. 34. In the plaint, the plaintiff averred that for quite some time he has been carrying on business of Sarafa in his father's shop. He has now acquired experience and he wants to do separate business of his own and for that he needs the premises. 35. In his deposition, he stated that he purchased the shop for carrying on Sarafa business; he knew sarafa business since he worked for 2-3 years in his father's shop; his father's sarafa business was quite old; the shop available with his father was quite small and was not sufficient to accommodate the three persons namely his father, his brother and himself. He also stated that he was married and having two children and has sufficient finances to run the business of his own. In his cross-examination explained that he wanted to do separate business since his income from the joint business was not sufficient and he has no other source of income. He further clarified that even if his father's shop was big, that would not make any difference about his need as he wanted to do separate business. According to him Brij Mohan has not been carrying on business in the suit shop. Gobind Prasad sits sometimes in the shop. In the backdrop of the pleading noticed above and the plaintiff's evidence, can it be said that there is variance in the pleading and proof that makes the plaintiff's case unacceptable? I do not think so. The thrust of the plaintiff's case for the need as set-up in the plaint was that he has been carrying on his business with his father and now having acquired sufficient experience, he wanted to do separate business. In his evidence he has stuck to his case that he wanted to do separate business of his own. Though, in his examination-in-chief he stated that his father's- shop was small and can not accommodate three persons namely father, his brother and himself but in the cross-examination he made it clear that irrespective of the size of the shop, he wanted to do separate business. His evidence is consistent that he has acquired enough experience to run separate business of Sarafa. 36. His evidence is consistent that he has acquired enough experience to run separate business of Sarafa. 36. The counsel for the respondents submitted that if the plaintiff was serious to run separate business of Sarafa and wanted himself to be separated from his father's business, he would not have purchased the tenanted shop. The counsel for the respondents would further submit that if the need of the plaintiff were genuine, he would have purchased the vacant shop and not that was tenanted. The counsel for the-respondents strenuously urged that the need of the plaintiff was not bonafide and at best it was a desire which would not entitle him the decree for eviction. He also submitted that the findings recorded by the courts below on the question of reasonable and bonafide necessity are findings of fact and the High Court in Second Appeal can not substitute its own finding. He relied upon the following judgments in support of his contention : (i) S.J. Ebenezer v. Velayudhan and others, AIR 1998 SUPREME COURT 746 ; (ii) Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, AIR 1999 SUPREME COURT 2507 ; (iii) Indrasen Jain v. Rameshwardas, 2005 (1) WESTERN LAW CASES (SC) CIVIL 424 ; (iv) Ram Prasad Rajak v. Nand Kumar and Bros. and another, AIR 1998 SUPREME COURT 2730 ; (v) Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, AIR 1999 SUPREME COURT 2213 ; (vi) Ms. Labanya Neogi v. M/s. W.B. Engineering Co., AIR 1999 SUPREME COURT 3331 ; (vii) Dayanoba Bhaurao Shemade v. Maroti Bhaurao Marnor, AIR 1999 SUPREME COURT 864 . 37. It needs no debate that finding on the question of reasonable and bonafide necessity is the finding of fact. The question is the finding recorded by the two courts below on the reasonable and bonafide necessity is vitiated by error of law or the said finding is manifestly unjust or arrived at with erroneous approach necessitating interference in the second appeal. 38. The Supreme Court in the case of M/s. Variety Emporium v. V.R.M. Mohd. Ibrahim, AIR 1985 SUPREME COURT 207 , held that the interference in the finding of fact may be called for where the finding is shown to be manifestly unjust. 39. 38. The Supreme Court in the case of M/s. Variety Emporium v. V.R.M. Mohd. Ibrahim, AIR 1985 SUPREME COURT 207 , held that the interference in the finding of fact may be called for where the finding is shown to be manifestly unjust. 39. In the case of Bega Begum v. Abdul Ahmed, AIR 1979 SUPREME COURT 272 , the Supreme Court observed that if the finding of fact has been arrived at by legally wrong approach and while recording the finding of fact, the Court has committed a substantial and patent error of law, such finding of fact can be corrected. 40. In the case of Deena Nath v. Pooran Lal, (2001) 5 SCC 705 , it was observed by the Supreme Court that if in recording a finding the court does not bear in mind the statutory mandate, such finding would not be a mere finding of fact and such erroneous finding illegally arrived at would vitiate the entire judgment and can be set-aside in second appeal, even if concurrently made by lower courts. 41. The Supreme Court in the case of Sait Nagjee Purushottam & Co. Ltd. v. Vimlabal Prabhulal, 2005 (2) WLC (SC) Civil 611 : (2005) 8 SCC 252 , observed that it was always the prerogative of the landlord to decide for what purpose he requires premises. It is not tenant who can dictate terms to landlord and advise him what he should do and what he should not. It is always the privilege of landlord to choose the nature and place of business. 42. In the case of Rohini Prasad and others v. Kastur Chand and another, (2003) 3 SCC 668 , the Supreme Court held that interference by the High Court under Section 100 of the Code of Civil Procedure in the finding of fact is permissible where misreading of the evidence by the appellate court would lead to miscarriage of justice or the finding so recorded is based on no evidence and, thus, perverse. 43. Principally, the first appeal court has non-suited the plaintiff in so far as the ground for eviction based on reasonable and bonafide necessity is concerned, on the basis that there was variance between pleading and proof. 44. Having considered the judgment of the Appeal Court thoroughly, I find that the approach of the Appeal Court in this regard was not legally proper. 44. Having considered the judgment of the Appeal Court thoroughly, I find that the approach of the Appeal Court in this regard was not legally proper. The Appeal Court over-looked the legal position that it was not necessary for the landlord to plead every minor aspect of his need. The material and necessary facts concerning reasonable and bonafide necessity have been pleaded in the plaint. He maintained the said case in his evidence and explained why he needed the premises. There is no inconsistency in the case set-up by the plaintiff in the plaint and the evidence adduced by him. If the plaintiff wants to do separate business from his father, obviously tenant can not compel him to continue the business with his father as evidence clearly establishes that he is well-versed with Sarafa business. The law does not compel that son should continue to run business with his father though he has a shop of his own. From the totality of the evidence it is difficult to infer that the suit for eviction has been filed by the plaintiff with ulterior motive. As a matter of fact the dependants are in possession of the suit shop for more than 60 years. The shop was purchased by the plaintiff in the year 1972. He wanted to start his own business in the suit shop which he has been deprived of for few decades because of erroneous approach of the courts below in the matter. In my considered view, the finding of the courts below on the question of reasonable and bonafide necessity is manifestly erroneous and unjust, justifying interference in the second appeal. 45. In so far as the question of comparative hardship is concerned, no doubt is left that it is the plaintiff who shall suffer greater hardship if the decree for eviction is not granted because he shall have to continue to work at his father's place despite that he has sufficient financial means to do separate business. The plaintiff has every right to start his own business and grow and that can only be done provided he starts business of his own for which he has been waiting for more than 30 years. On the other hand the defendants have already enjoyed the premises for more than six decades. One of the defendants namely Brij Mohan, as is seen from the evidence has started separate business. On the other hand the defendants have already enjoyed the premises for more than six decades. One of the defendants namely Brij Mohan, as is seen from the evidence has started separate business. Gobind Prasad has been, off and on, sitting in the suit premises. It is not difficult for the tenant to get some alternative premises in city of Bharatpur. I, therefore, hold that greater hardship would be caused to the plaintiff if the decree for eviction is declined. 46. Looking to the size of the shop which is 12'x8'; it is very difficult to hold that partial eviction shall meet the plaintiff's requirement. 47. Consequently, second appeal is allowed. The judgment and decree passed by the Additional District Judge No. 2 Bharatpur, dated 21.4.1989 affirming the judgment and decree dated 3rd of June, 1983, passed by Additional Munsif, Bharatpur, is set-aside. The plaintiff's suit for eviction is decreed on the ground of reasonable and bonafide necessity. 48. The defendants (respondents) are granted three month time for vacation of the suit shop. The parties shall bear their own costs.Appeal Allowed. *******