1984 Supreme(MP) 208

( 404 )
R. K. Vijaywargiya, J.
Narmada Prasad v. Rameshchandra
S. A. No. 308 of 1980 (I); Decided on 23-3-1984.

Headnote:(1) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (e) and (f) -- composite tenancy -- eviction decree can be passed on proof of anyone ground.

        (2) Accommodation Control Act, 1961 (M. P.) -- S. 12 (1) (b) -- question of sub-tenancy -- is a question of fact -- cannot be interfered with in second appeal.

        (3) Civil P.C., 1908 -- S. 100 -- question of sub-tenancy -- is a question of fact.

        This appeal was admitted for hearing on the following questions of law:--

       (1) Whether the plaintiffs suit could be decreed on the grounds contained in Section 12(1) (e) and (f) when the plaintiff had pleaded the ground contained in section 12 (1)(f) in plaint?

       (2) Whether the lower appellate Court has committed any error in not considering the plea of appellants Gokul, Mohan and Jagdish being the licencees of appellant-tenant. If so, what would be the effect?

        Held : As regards the questions framed in the appeal the learned counsel for the appellant contended that the requirement of the plaintiff for residence of himself and members of his family could not have been considered by the appellate Court because on a true construction of the plaint the plaintiff claimed the tenanted accommodation only for starting his business. This contention has no merit. Although in the plaint the plaintiff stated that the dominant purpose of the tenancy was non residential and the plaintiff required the suit accommodation for starting his business, the plaintiff also alleged in the plaint that at present be was residing in his farm house which is at a distance of two k.m. from the town and very inconvenient for his residence.

        The appellate court on appreciation of evidence on record held that the residential as well as nond`residential requirements of the plaintiff were proved. The appellate Court has held that the plaintiff required the suit accommodation for starting his dispensary and sales centre for his agricultural produce and he has no other accommodation of his own available to him for the purpose in the town. The appellate court further held that the plaintiff required the residential part of the accommodation for residence of himself and members of his family and that the accommodation in his possession is inconvenient for his residence. These are findings of fact based on appreciation of evidence and there being evidence in support of the finding recorded by the appellate Court are binding on this court in second appeal.

        The learned counsel for the appellant was unable to point out any such infirmity in the finding recorded by the appellate Court which may vitiate the same. I, therefore, see no reason to interfere with the said findings recorded by the appellate Court. Question No. 1 is decided accordingly. Moreover, even if the tenancy was a composite one as pleaded by the defendant, and as one of the requirements, i.e., nond`residential requirement of the plaintiff is proved the tenant is liable to be evicted from the entire accommodation as held by a Division Bench of this court in Jagjitkumar v. Jagaish Chandra (19R2 JLJ 319). Thus, even if the residential requirement of the plaintiff is not taken into consideration the appellate Court did not commit any error of law in passing a decree for eviction against the defendant.

        As regards question No. 2 the appellate Court has held that the defendant had sublet part of the premises to Gokul, Mohan and Jagdish without the permission of the landlord in writing. This is also a finding of fact based on appreciation of the evidence on record. The defendant pleaded that Gokul, Mohan and Jagdish were his servants. Gokul and Mohan were examined by the plaintiff and Jagdish was examined by the defendants. Gokul and Mohan stated that they had taken a part of the premises from the defendant on rent to run a Pan shop there, their evidence has been accepted by the appellate Court. Jagdish deposed that he was a servant of the defendant. His testimony has not been accepted by the appellate Court. Thus, the finding recorded by the appellate Court is a finding of fact and is binding on this court in second appeal. 1982 JLJ 319 relied on. Appeal dismissed.