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2011 Supreme(Raj) 204
[Citation : 2011(3) RLW 1873 (Raj.)]
(Rajasthan High Court)
Satya Narain Vs. Baldev Krishan (Joshi, J.)
HON'BLE KAILASH CHANDRA JOSHI, J.
Satya Narain
Versus
Baldev Krishan
S.B. Civil Regular Second Appeal No.216 of 2010, decided on 11.03.2011
P.K. Sharma, for Appellant;
O.P. Mehta, for Respondent-Caveator
Headnote:C.P.C., Sec. 100; Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Sec. 13(1)(h) — Second appeal — Scope of interference in concurrent finding of fact — Suit for eviction on various grounds — Decreed on bonafide and reasonable necessity of the respondents wife as she wants to start "Papad", "Badi" business — First appellate Court affirmed the decree without referring anything about the death of his wife during pendency of appeal and further he had no experience of business — Held — Finding of fact arrived at by the first appellate Court is arbitrary, unreasonable, and perverse — Mere desire is not enough and there should be element of need and land lord should show the burden upon him that he genuinely require the premises as provided u/S. 13(1)(h) of the Act — High Court can interfere in second appeal if the decision of the lower appellate Court is contrary to law.
Second appeal allowed. (Paras 52 to 55)
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f}rh; vihy Lohdkj dhA
2. Heard the learned counsel for both the parties.
3. This second appeal has been filed by the defendant appellant tenant, against the decree of eviction passed by the learned appellate court , i.e., the District Judge, Churu.
4. The suit was filed by the respondent plaintiff, against the appellant defendant, for eviction of property on various grounds, including grounds of bonafide and reasonable necessity, sub-letting, material alteration, and change of user, and the learned trial court decreed the suit only on the basis of bonafide and reasonable necessity, which was affirmed by the first appellate court vide impugned order dated 08.11.2010.
5. The facts of the case are that, the plaintiff filed the present suit for eviction of the shop and the room situated on the second floor of the shop situated at 'Athuna Bazar', Sardarshahar, with an averment therein that the shop, comprising in three parts in dispute, was let out to the defendant appellant on 01.09.1980, on monthly rent of Rs.500/- and at the time of the filing of the plaint , the monthly rent of the premises was Rs.600/- per month. On 01.09.1985 a room situated on the second floor of the same building was let out to the defendant appellant, for the purpose of staying of the customers and the Commission Agents of the defendants.
6. The plaintiff sought the decree of eviction against the defendant on the ground that initially the plaintiff was serving in the Indian Army and, thereafter, he had been appointed as Divisional Commandant, Home Guards, and at the time of filing of the plaint, he was to retire after three and a half years and his family consisted of eight members, including five daughters , one son , wife and himself and to meet out the family needs and in order to increase the earning of the family, the wife of the plaintiff wants to do the business of manufacturing 'pappad' 'badi' and other spices and the plaintiff himself, after his retirement from the above post, wants to continue the same business for increasing the earning of the family. The plaintiff pleaded his bonafide necessity for the shop, for the above business and for the room situated at the first floor, for the domicile purpose of his family members. In addition to bonafide necessity, the fact of the comparative non-fulfilment of the requirements of the plaintiff, by way of partial eviction .
7. The other grounds of material alteration, by way of raising a cemented pavement and subletting to the brother of the defendant, and the ground of default, were also pleaded by the plaintiff as grounds for eviction.
8. By way of written statement, the defendant denied all the averments pleaded in the plaint, as grounds for eviction and further the defendant pleaded that initially the rent of the shop was Rs.500/- per month but subsequently from September 1995, it was increased to Rs.600/- per month. The defendant denied the reasonable and bonafide necessity of the plaintiff, on various grounds and he also denied the other facts, which were averred by the plaintiff in the plaint , pleading as grounds for eviction.
9. The learned trial court originally framed 9 issues and tenth issue was framed on 24.05.2003. Issue No.1 was as to Whether the plaintiff has a reasonable and bonafide necessity of the suit premises,and issue No.2,3,4 and 5, were regarding the other grounds of eviction,, which were pleaded by the plaintiff and issue No.6,7 and 8 were on the basis of the averments made in the written statement by defendant, and the burden of proving these three issues were placed on the defendant.
10. During the trial, the plaintiff examined 2 witnesses, PW/1 Baldev Krishan and PW/2 Ratan Lal and after the examination of four witnesses DW/1 Saty Narain, DW/2 Santosh Kumar, DW/3 Padam Chand and DW/4 Kishore Kumar Charan, the plaintiff examined himself and PW/3 Om Prakash Soni, in rebuttal. On 29.7.2003, DW/1
