IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

J U D G M E N T

HANSRAJ

V/S

RAJKUMARI

S.B.CIVIL SECOND APPEAL No.166 of 2005

Date of Judgment

:

05 October, 2007

PRESENT

HON'BLE SHRI N.P.GUPTA,J.

Mr. H.R. Soni and Mr. R.R.Nagori, for the appellant.

Mr. R.K. Thanvi, for the respondent.

BY THE COURT:

This second appeal has been filed by the defendant

appellant tenant, against the decree of eviction passed by

the learned lower Appellate Court, on the ground of

reasonable and bonafide necessity of the plaintiff, and

also by deciding the question of partial eviction, and

comparative hardship in favour of the plaintiff. The suit

was dismissed by the learned trial court.

The facts of the case are, that the plaintiff

filed the present suit for eviction on 27.10.1995. The

allegations are, that the house no. 6, B-Block,

Sriganganagar adjacent to corner shop type Chhaper, which

was let out by Chunnilal husband of Saroj Kumari to the

defendant in the year 1990 at a monthly rent of Rs. 1000/-,

which rent was subsequently increased to Rs. 1100/-. The

defendant paid rent to Chunnilal upto 31.3.1993. It is

alleged that the said Chhaper exists on municipal land,

which was taken on rent by Saroj Kumari, and Saroj Kumari

sold the Malba of Chhaper to the plaintiff in the year

1993, and now it is recorded in the name of plaintiff,

consequently Saroj is retaining no concern with this. Thus,

there is relationship of landlord and the tenant between

the plaintiff and the defendant. Then, it is alleged that

Chhaper was taken on rent by the defendant from husband of

Saroj, and in that regard the husband Chunnilal gave a

registered notice dt. 30.7.1993 to the defendant, directing

him to pay rent since 1.4.1993 onwards to the plaintiff.

Likewise identical notice was given by the plaintiff to the

defendant, both of which notices were received. Thus, also

relationship of landlord and tenant is established. With

this it is alleged, that the defendant has not paid the

rent for 30 months, and has claimed eviction on the grounds

mentioned in para-5 being default in payment of rent, and

reasonable and bonafide necessity of the plaintiff, as the

plaintiff's daughter in law Smt. Vinod Bakshi, who is M.A.,

M.Ed. qualified, and was working as teacher in Vivek

Memorial Public School till 30.11.1994, requires the

premises for establishing a computer coaching centre. This

Vinod Bakshi is claimed to be living in the house no. 89,

in the B-Block. Size of the premises was pleaded to be 12 x

2

20 ft. Then, the pleadings about the impartibility, and

comparative hardship have been taken.

A written statement has been filed by the

defendant on 22.5.1996, contesting the suit. Para-1 of the

plaint was denied, and it was pleaded that the suit shop

was taken on rent from Chunnilal at a rent of Rs. 1000/-,

and he is continuing in tenancy. It was admitted that the

shop existed on the land of Municipality. However, the fact

of its purchase by the plaintiff in April, 1993 was denied,

and it was pleaded that the shop was taken on rent from

Chunnilal, and rent was being received by him only. It was

also pleaded that the factum of purchase of shop by

plaintiff is denied, and that plaintiff never made any

demand of rent from the defendant. Then, replying para-3 it

was pleaded that Chunnilal never gave any notice to the

defendant about having sold the shop, nor any such notice

was sent by the plaintiff. It was denied that the plaintiff

is entitled to maintain the suit. Then, replying para-4 the

plea of the rent @ Rs. 1100/- per month being in arrears

from 1.4.1993 to 30.9.95 was denied. It was pleaded that

the plaintiff never made demand of rent, nor gave any

notice, and the plaintiff is not entitled to receive any

rent from the defendant. Then, replying the grounds pleaded

in para-5, the allegation of default was denied, pleading

that the defendant has not committed any default. Denying

the plea of bonafide necessity, the academic qualification

3

of the plaintiff's