Rajasthan High Court - Jaipur
Mohan Lal vs Smt. Radha Kumari And Ors. on 7 April, 1986
Equivalent citations: 1986(2)WLN23
JUDGMENT Panna Chand Jain, J.
1. This appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 2nd March, 1979, passed by the learned Addl. District Judge No. 3, Jaipur City, Jaipur, in Civil Suit No. 89/1974 (59/1971).
2. Briefly stated the facts of the case are that the plaintiff is the owner of Plot No. F-170, situated in Ashok Nagar Gautam Marg, Jaipur. On this plot, there is a building having ten rooms, six on the ground floor and four on the first floor. There is also a garage attached to the building. This building was leased out to Smt. Radha Kumari for the purpose of running a school on on 15th August, 1960, on a monthly rent of Rs. 240/-. A suit was filed against Smt. Radha Kumari for eviction in the Court of Civil Judge, Jaipur City, Jaipur on 15th February, 1968. The defendant contested the suit and contended that with effect from 1st April, 1965, she was no more a tenant and the tenant is respondent No. 4, Rastriya Vidya Niketan Sikshan Samiti Jaipur. The suit was withdrawn with the permission of the Court to file another suit against respondent No. 4. As such, the present suit has been filed against Smt. Radha Kumari and others, including Rastriya Vidya Niketan Sikshan Samiti, Jaipur. In the suit, eviction has been sought on the ground of personal necessity, subletting and for the purpose of establishing a school by Nand Kishore, son of the plaintiff. The defendant contested the suit.
3. On the pleadings of the parties, the following issues were framed:
(1) (a) Whether the defendants sub-let the garage ?
(b) Whether the plaintiff has given his consent to defendants for subletting ?
(2) Whether the defendants have begun to use the bungalow for purpose other than running the school and what is its effect ?
(3) Whether the plaintiff requires the premises in question for bona fide and reasonably for himself and his family for the purposes mentioned in Para 6 of the plaint ?
(4) (a) Whether the defendant No. 2 did not receive the notice ?
(b) Whether the delivery of notice addressed to defendant No. 4 to the Principal of the school is not to be taken a notice to defendant No. 4 ?
(5) Whether the defendant No. 4 spent Rs. 750/- in white-washing and/colouring of the bungalow and Rs. 300/- every year, the same way and if so, is the defendant No. 4 is entitled to deduct the amount from rent ?
(6) Relief?
(7) Whether the plaintiff served a valid notice upon the Adhyaksha of the defendant No. 7. If so, to what effect ?
(8) Whether the premises in dispute were let out to the defendant No. 4 on the condition that these will no be got vacated at any time ? If so, to what effect ?
(9) Whether in view of the allegations made in the re-application of the plaintiff dated 2-12-1975, he will suffer greater hardship if decree of eviction of the defendant is not granted to him ?
4. The learned trial Court decided issues No. 1(b), 4(a) (b), 5,7 and 8 in favour of the plaintiff appellant and issues No. 1(a), 2 and 9 in favour of the defendant-respondents. Aggrieved by the judgment and decree dated 22nd March, 1979, this appeal has been preferred.
5. Shri R.M. Lodha, learned Counsel for the plaintiff-appellant, Submitted that the finding recorded by the learned trial Court, on the point of sub-letting, is not correct. It was submitted that there was over-whelming evidence on record that a part of the premises, which is garage, was let out to Sita Ram Khandelwal for running a ration shop in the garage. It was also submitted by the learned Counsel for the plaintiff-appellant that there was sufficient evidence to prove that the suit premises were needed by the plaintiff reasonably and bonafide for the plaintiff and his family, for the purpose mentioned in para 6 of the plaint. He also submitted that the suit premises were leased out for the purpose of running tbe school, but the same is being used for residential purposes by the Secretary of the Society. The learned Counsel also submitted that on issue No. 9, the finding recorded by the learned lower Court is not correct. His submission is that when the learned lower Court decided issue No. 3 in favour of the plaintiff-appellant, then in the facts and circumstances of the case, issue No. 9 should have been decided in favour of the plaintiff, as in case the defendants are not evicted from the suit premises more inconvenience will be caused to the plaintiff than the defendants. The defendants are running a school on no profit no loss basis and the Society is in receipt of the grant from the Government.
6. Shri B.P. Gupta, learned Counsel for the defendants, submitted that the finding recorded by the learned lower Court on issue No. 3 is not correct. He assailed the finding on issue No. 3. His main submission is that there is enough accommodation for the plaintiff. He has also submitted that after filing of the suit, the wife of the plaintiff had died. Two daughters of Purushottam Das s/o Mohan Lal, plaintiff Kusum and such have been married. It was also contended by him that other members of the family include minor sons and daughters, two sons of the plaintiff, namely Purushottam Das and Nand Kishore. The case of the defendants is that the premises which are at present available with the plaintiff are sufficient to accommodate the entire family of the plaintiff, Mohan Lal, his two sons Purushottam Das and Nand Kishore. Purushottam Das is married. He has six issues, two sons and four daughters. Two daughters have been married and two daughters are reading in secondary classes. Two daughters, as stated earlier, had been married after the filing of the suit. Nand Kishore is also married. He is a teacher having four sons. All are school going children. Surendra Kumar son of Purushottam Das is also married and is a graduate. There are three daughters of the plaintiff who are married. The plaintiff had retired as Revenue Officer, Municipal Council, Jaipur. Purushottam Das is UDC in the Crime Branch CID & Nand Kishore is a lecturer in a private institution. There are three rooms on the ground-floor and two rooms on the first-floor. In the ground-floor there is one kitchen, and two store-rooms. The store-room is measuring about 8 X 6 sq. ft. each. There is one open verendah and an open chowk. There is one godown on the first floor. There is no dispute between the parties that on the ground floor of the suit premises school is run and on the upper story, defendant No. 2, Gopi Krishna Sidha. who is the Secretary of the Rastriya Vidya Niketan Sikshan Samiti, is residing with his family and is occupying four rooms. It appears that Shri Sidha occupied the first floor subsequently after the suit premises were leased out.
7. Since Shri Gupta, learned Counsel for the defendant respondent, has assailed the finding of the learned lower Court on issue No. 3, it is necessary to examine the finding on the said issue. Issue No. 3 relates to the ground of reasonable and bonafide necessity for the family, as alleged by the plaintiff, for the suit premises, for the purposes mentioned in para 6 of the plaint. In para 6, the plaintiff pleaded that the suit premises are needed by him for himself and his family. It was also pleaded in para 6 of the plaint that the suit premises are needed for the family and for running a school on the ground floor by the son of the plaitiff Shri Nand Kishore. It was also pleaded that after the year 1960, there is substantial increase in the members of the family. Eviction was also sought on the ground of sub-letting and also on the ground that the purpose for which the suit premises were leased out was for running a primary school, but inconsistent with the purpose for which the defendants were admitted to the tenancy, they are using the premises. In the evidence, it is disclosed that a part of the premises, i.e. first storey is being used for residential purposes by the Secretary of the Society. The learned Court recorded the evidence of PW 1 Mohanlal, PW 2 Nand Kishore, PW 4 Abdul Gafoor, PW 6 Chandulal, PW 6 Badri Narain, PW 9 Purushottam Das, PW 5 Chandulal, PW 10 Brij Kishore Sharma and PW 11 Jagannath and came to the conclusion that in the family of the plaintiff there are 16 members including the plaintiff and his wife, two sons, grand-daughters and grandsons. The learned lower Court also observed that the defendants in their evidence have not challenged this fact. The learned lower Court also recorded a finding that on the ground floor of the house, in which the plaintiff and his family is residing there are three rooms, one store, and a kitchen, and on the first floor there are two rooms and one kitchen. The defendants examined DW 1 Gopi Krishna who has deposed that there are five rooms on the ground floor and three on the first storey. As per his statement there are total eight rooms, including one Tehkhana. He has also deposed that there are kitchens and store also. It is true that the evidence adduced by the plaintiff is not consistent regarding the number of rooms and stores. But, on appreciation of the entire evidence on record, it can be held that there are three rooms on the ground floor and two rooms on the first floor and that there is one kitchen, stores and tehkhana on the ground floor and a kitchen or a store room on the first floor. The learned lower Court after appreciating the evidence on record recorded a finding that inspite of some exaggeration made by the plaintiff in the evidence, the plaintiff has proved that he reasonably and bonafide requires the suit premises. Thus, the finding of the learned lower Court is based on the evidence of PW 1 Mohanlal, PW 2 Nand Kishore, PW 9 Purshottam Das, PW 10 Brij Kishore Sharma and PW 11 Jagannath. PW 1 Mohan Lal has deposed that his elder son Purshottam Das is residing on the first floor in one room and another son Nand Kishore is residing in another room on the first floor and on the ground floor he himself is living. He has also deposed that one kitchen is being used by Purshottam Das and another kitchen is being used by his son Nand Kishore. But, this witness subsequently admitted that the family is joint and in which one kitchen is being used by the family. This is supported by PWs 4 and 6. PW 8 Nand Kishore has deposed that he needs the suit premises for running a coaching class. He has also deposed that at present he is running a coaching class and, for that purpose, he has taken on rent a room from PW 3 Badri Narain. To substantiate his statement, lease-deed Ex. 3 has also been filed. The learned lower Court while considering issue No. 3 also considered that if the plaintiff makes a statement that he needs the suit premises reasonably and bonafide, then ordinarily his statement is sufficient unless, of course, there is some oblique motive. The learned lower Court also took into consideration while arriving at the finding that for a big family, big premises is needed. The learned lower Court observed that in the ordinary course it should be presumed that two married sons will require two rooms and the plaintiff would also need a separate room. It was also observed by the learned lower Court that major sons and daughters of the two sons of the plaintiff would also need separate rooms. The learned lower Court also agreed that the rooms are needed for school going children also. The learned lower Court has also placed reliance on Krishna Kumar v. Vimla Sehgal 1976 RCR 240 Roshan Lal v. Madhu Soodan 1972 RCR 350 Jagannath v. Tribeni Devi 1970 RCR 767 Muni Lal v. Nand Lal 1971 RCR 298 K.N. Bhatnagar v. Dharam Paul 1978 (1) RCR 49 and Haru Prasad v. Dhanpal Singh 1971 RCR 861.
8. In Krishna Kumar v. Vimla Sehgal (supra), landlord's family consisted of himself, his wife and three grownup children. He wanted to eject the tenant to provide separate rooms to each of his children. In the facts and circumstances of that case, the Delhi High Court observed as under:
On the question of the landlord's need I have differed from both the Controller and the tribunal. I have come to the conclusion that the landlord's need is genuine. He does require a separate room for himself and his wife and three rooms for his two sons and and daughter. But there is not enough room to ground.
The Court also observed that--
The Controller's view that the son and the daughter can be huddled together in one room is unreasonable and arbitrary. The tribunal's judgment is founded on a supposition which is groundless. The Controller's solution is unrealistic.
In the said judgment, it was also observed by the Delhi High Court that--
The law does not expect the landlord to sacrifice his comforts and live a crowded life in his own house when he can have better comfort. The view that son and daughter can be huddled together in one room is unreasonable. The landlord cannot be asked that he must somehow put up with the limited accommodation in his possession.
9. In Jai Ram v. Ram Pratap 1973 RCR 717 Punjab and Haryana High Court has observed that in case the building which is in the occupation of the landlord is not adequate for his use and for comfortable living he can seek eviction of his tenant from other building in same urban area. In that case, the respondent required the building for his own residence. The house occupied by him was insufficient for his needs as there was no room available for guest and villagers, nor one which can be used separately by any member of his family.
10. In Puran Chand v. Jagdish Lal 1974 RCR 813 the Himachal Pradesh High Court in its D.B. judgment also observed that landlord can seek eviction of the tenant if the accommodation occupied by him is insufficient for his needs.
11. In Jagan Nath v. Tribeni Devi (supra), the Delhi High Court while considering the requirement for bonafide necessity observed as follows:
There is no legal requirement that the actual purpose for which the land lady would use or utilise the portion in the occupation of the tenant should be specified in the notice issued by her. Nor is it reasonable to suggest that because the family was not accustomed to having a dining room and a drawing room previously, they should continue with their old habit and should not cultivate a new habit of setting apart a portion of the house for using the mess, drawing and dinning room and bed rooms. The son of land lady is an Advocate and his status and respectability cannot be regarded as any the less merely because he was not an income-tax assessee. The desire of the land lady and the members of her family to have a drawing room and a dinning room cannot be said to be unreasonable or whimsical or caprious desire.
There is nothing on the record that there is collateral or ulterior object in getting the premises vacated, and the alleged requirement is a device or a subterfuge. The Court is required to see whether the landlord in fact desires possession and genuinely intends to occupy the premises in question. In this case, the plaintiff desired to live in a bigger house more comfortably with his family which consists of two grown-up sons and the family. Both the sons are educated one is a lecturer, though in a private institution and, if the family of the plaintiff wants to live comfortably, looking to their status, and when the learned lower Court has recorded a finding that the premises in the occupation of the plaintiff is not sufficient to meet the requirement of the family, the need of the family can be held to be reasonable and bonafide. A landlord is a master of his requirement and, unless oblique motive or other collateral considerations arose the Court should not interfere in it. In my opinion, the finding recorded by the learned lower Court on issue No. 3, regarding reasonable and bonafide necessity of the plaintiff and his family is well established.
12. The learned Counsel for the plaintiff appellant has submitted that issue No. 1A has wrongly been decided against the plaintiff. Issue No. 1A relates to sub-letting. The case of the plaintiff is that the defendants had sub-Set the garage, a part of the demised premises, to one Sita Ram Khandelwal for running a ration shop. The learned Counsel for the plaintiff appeal In submitted that photos of the shop showing that ration shop was goinig on were placed on record and the same were admitted by defendant No. 2 in his statement. Further there was evidence produced by the plaintiff proving the fact that the garage was given to Sita Ram Khandelwal. PW 1 Mohan Lal, PW 2 Nand Kishore, PW 4 Abdul Gafoor, PW 5 Chandu Lal and PW 6 Badri Narain have stated that the garage was in the occupancy of Sita Ram Khandelwal. The learned lower Court disbelieved the allegation of Sub-letting of garage to Sita Ram Khandelwal on the ground that Sita Ram Khandelwal was not produced as a witness and further the plaintiff has failed to summon the record of the shop. The defendants denied the allegations made by the plaintiff. The defendants produced number of witnesses to contend that the said garage was never given to Sita Ram Khandelwal. PW 1 Gopi Krishna, PW 3 Jamuna Prasad, PW 3 Om Prakash, PW 4 Ram Kumar and PW 5 Suresh Chandra Sharma have stated that they never saw any ration shop in the garage. It is true that Ex. 8 photo has been produced, but the photographer was not produced. As such, no inference can be drawn from the photographs. I am in agreement with the learned lower Court that the plaintiff has failed to prove the allegations of sub-letting. There is no evidence that the defendants at any time parted with the possession and created a tenancy of Sita Ram Khandelwal. There is no convincing evidence to sustain the allegation of sub-letting. Thus, I am of the opinion that the plaintiff has failed to prove the charge of sub-letting for seeking ejection of the defendants from the suit premises.
13. The learned trial Court, though, recorded a finding that the suit premises is needed by the plaintiff reasonably and bonafide but did not decree the suit as it decided issue No. 2 against the plaintiff. Under the finding given by the learned lower Court it was held that greater-hardship will be caused to the tenant in case a decree for eviction is passed.
14. The question of comparative hardship is required to be decided on the basis of evidence produced by the parties to show their relative advantages and disadvantages. There is no doubt about the proposition of law that the burden of proof on the question of comparative hardship lies initially on the landlord and once the burden is discharged by the landlord it shifts to the tenant. The Court is required to consider all the circumstances of the case as to whether greater hardship would be caused by passing a decree than by refusing to pass it. This question was considered by their Lordships of the Supreme Court in Baga Begum and Ors. v. Abdul Ahad Khan and Ors. 1979 (1) RCJ 344 in which it has been observed as follows:
It seems to us that in deciding this aspect of the matter each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiffs to prove that lesser disadvantages will be sufferred by the defendants and that they were remediable.
This Court in D.B. judgment in Narottam Lal v. Mukat Lal I & R (1979) 29 Raj 1001 also considered Section 14 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 and observed that a very heavy burden has been cast upon the courts to decide in each case this delicate question of comparative hardship. No hard and fast rule can be laid down. Each case still have to be decided on its own merits. It was also observed that all the circumstances have to be put in the scales which would tilt the balance of hardship on either side including the financial position of both the landlord and the tenant, the financial means available to them for securing alternative accommodation either by purchasing or by hiring one. The nature and extent of business or the requirement of the residential accommodation, as the case may be, the hardship which would be caused not only to the landlord and the tenant personally but even to their family member dependents or persons residing with them as one unit, so, that the hardship of those persons would really amount to the hardship of the landlord or the tenant. It was also observed while considering the case of Kasturbhai and Bros. v. Firm Mohan Lal that the whole process of weighing the hardship is a delicate process where various factors have to be thrown into the scales and the Court has to examine how each factor tilts the balance on either side and thereafter it has to find out the final balance of hardship. In P.N. Kuppa Sah v. Rajaram Shah 1979 (9) RCR 84 the Madras High Court also considered this aspect of the matter and observed that merely because it would be difficult for the tenant to secure an alternative accommodation of a similar type it cannot be said that the hardship that might be caused to him would outweigh the advantage to the landlord. In U.M. Khadi v. Narsingh Dass 1977 (2) RCR 606 this Court also considered the question of comparative hardship and observed as follows:
It appears that the business of the institution no doubt shall be dislocated by change of premises but if the shop is not made available to the plaintiff than, he will be required to take on rent some other premises.
In Mahashvari Samaj v. Mohan Singh 1984 RCR 35 this Court had an occasion to consider Section 14(2) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 and, while interpreting the said section, the following observations were made:
The mere fact that the tenants have been living in the premises in question for a long time and some inconvenience would be caused to them on account of shifting from the present place cannot deter the Court from passing a decree for eviction, as such inconvenience would always be caused when a decree for ejectment is passed. It may be that the defendants may have to pay higher rent for alternative accommodation. Both such difficulties inevitably arise practically in every case of eviction from the premises which have been occupied by a tenant.
In that case, the case of Gunnabatula Papachari v. The Country Tobocco Merchants Association by its President Vijayawada 1975 RCJ 75 was also considered, wherein the learned Judge of the Andhra Pradesh High Court observed that hardship that may be caused to the tenants, would not out-weight the advantage or benefit which would be gained by the Association.
15. In Oriental Fire and General Insurance Co. Ltd. v. Hukam Chand Jain 1984 RJR 495 again there was an occasion for considering the question of hardship by this Court and this Court in that case held that a tenant having very lucrative business and can easily afford to have other premises at more rent and that looking to the size of the plaintiff's family, his status, his occupation and the business which his son wants to start, the defendant appears to have been denying himself reasonable accommodation, which a person in these circumstances would certainly be entitled to and denial of these premises to the plaintiff in these circumstances would in fact amount to a denial of a reasonable opportunity to him. I may mention here that the plea of comparative hardship is to be considered in the back ground of the plea of bonafide necessity. In this case, the learned lower Court while giving its finding on issue No. 3 has held that the suit premises are needed by the plaintiff having reasonable and bonafide necessity. I have also agreed with the finding recorded by the trial Court on issue No. 3. Thus, it is held that the requirement of the plaintiff is reasonable and bonafide. It is required to be seen as to whether greater hardship will be caused by passing a decree for eviction than by refusing to pass it, as the landlord can get a decree for eviction only if he can prove that greater hardship would be caused to him. While deciding issue No. 3, it has been taken into consideration the size of the family. The defendants are running a school. The suit premises were taken on rent vide lease deed dated 28th August, 1960. This lease-deed or Kirayanama was executed by Smt. Radha Kumari wife of Gopi Krishna Sidha. Radha Kumari is defendant No. 1 and Gopi Krishna is defendant No. 8. The suit premises were required for running a school. It is stated in the rent note that the suit premises have been taken on rent at rate of Rs. 240/-p.m. for a period of six months for running a school. It is also borne out from the record that prior to the filing of this suit, a suit was filed by the plaintiff against Radha Kumari Sidha, which was suit No. 59 of 1968 and, was filed on 15th February, 1968. In that suit, defendants No. 1 and 2 had taken the plea that they are tenants with effect from 1st April, 1965 and that the suit premises is in the tenancy of Rastriya Vidya Niketan Sikshan Samiti, on a rent of Rs. 240/- per month. It appears that the present suit was thereafter filed, after with drawing the Suit No. 59/68 with the leave of the Court to file a fresh suit. The present suit has been filed against Radha Kumari, Gopi Krishna Sidha, Rajendra Prasad Agrawal and Rastriya Vidya Niketan Sikshan Samiti. In the present case, in para 5, it was pleaded that the suit premises was taken on rent for running a Primary School, but inconsistent with the purpose for which the defendants were admitted to the tenancy, the suit premises in being used for a different purpose. Defendants No. 1, 2 and 4 have pleaded in their written statement that the suit premises was taken on rent for running a school as well as for residential purposes. Defendant No. 3 simple denied the allegations made in para 5 of the plaint. Mohan Lal (PW 1) has deposed that the suit premises was given for running school, but defendant No. 1 is using part of the premises for her residence also. Gopi Krishna, defendant No. 1, in his statement has deposed that he is residing in the house with the permission of the plaintiff, though he admitted that in Exh. I, it is not written that the suit premises can be used for residential purpose and that in portion A to B it is written that the suit premises will be used for running a school. He has also stated that he along with defendent No. 1 are living in the suit premises for the last five-six years. His statement was recorded on 30th June, 1978. It is an admitted position by both the parties that the school is being run in the ground floor and for running the school first storey was never used. There is also no dispute between the parties that the floor is in the occupation of Radha Kumari and Gopi Krishna Sidba. Radha Kumari executed the rent note and, thus, she is an executant of the rent-deed for the purpose of running a school and, Gopi Krishna Sidha is the Secretary of the Samiti. Under Section 14(2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, there is a provision, which is reproduced as under:
Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only.
16. As discussed above, in considering the question of comparative hardship, the Court is required to see various considerations. It is true that it is a delicate question and a heavy burden lies upon the Court to decide it. It is true that the suit premises was given for running a school and part of the premises is being used for residential purposes by the Secretary of the Society. Without going into the controversy as to whether the purpose for residence is inconsistent with the purpose for which the suit premises was taken on rent, it is clear from the record that the first storey was never used for the purpose of running the school. Equity requires that school should be allowed to continue as evicting the defendant Samiti from the ground floor would adversely affect the career of the students getting their education there. Thus, while deciding the question of comparative hardship a balance has to be struck. The balance is between reasonable and bonafide need of the plaintiff on the one hand and need of the Samiti to run the school on the other hand. This, can be achieved if a decree in respect of part of the premises is passed, i.e. in case a decree for eviction is passed in respect of first storey where defendants No. 1 and 2 are residing, no hardship will be caused to the tenant. The school will continue to run and, the landlord with a big family will enjoy a comfortable life if part of the suit premises is given to them. It may be stated that both i.e. the house of the plaintiff and the tenanted premises are situated in the same vicinity. It appears that in between the two, there is only one house. The defendant Society is a recognised society and is taking aid from the State Government. The Society, therefore, can easily take a suitable premises in the nearby area or else where for its Secretary, even on higher rent. The premises were available during the pendency of the suit in the same locality, as would be evident from the statement of PW 1 and various advertisements published in the news-papers which are on record. The facts on record are that the sociely is running the school in the demised premises and, after the extension of its educational activities, classes are run in other tenanted premises in the same area. The submission of the learned Counsel for the defendants that, if a decree for eviction with regard to the first floor is passed, it would adversely affect the administration of the Samiti as the Samiti is running other classes in the nearby area after providing accommodation to the Secretary of the Sikshan Samiti. I am of the opinion that this submission should not deter the Court from passing a partial decree for eviction as admittedly the first floor was never used for running the classes and the Secretary of the Sikshan Samiti can easily get accommodation. And, as already mentioned above and admitted by defendant No. 2 that the Society is getting aid from the State Government, thus, the financial constraint to some extent would be mitigated. With the expansion of the work of the Society, it can be presumed that the financial condition of the Society seems to be quite well. In the premises aforesaid, I am of the opinion that it will be in the interest of the landlord and the tenant to pass a decree for partial eviction, as in case no decree for eviction is passed in favour of the landlord, greater hardship will be caused to the plaintiff landlord who is entitled to live comfortably in his own house. The finding recorded by the trial Court under Issue No. 9 is not justified. The learned lower Court recorded an adverse finding against the plaintiff on the ground that in case the decree is passed against the defendant i.e. against defendants No. 1 and 2, then it would be difficult to effectively run the administration of the school and that the building for the school cannot be constructed by the institution. I am of the opinion that the finding of the learned Lower Court is based on conjectures and surmises. Radha Kumari and Gopi Krishna can certainly take rented premises in the same locality or nearby locality. The defendants have not stated any where that premises are not available in the same vicinity or nearby the area. On the other hand, defendant No. 2 has stated that prior to the shifting to the demised premises he was living in F.98, Chatynya Marg, C-Scheme, Jaipur. This is the same area where the suit premises are situated.
17. Defendant No. 2 has also stated that he has got premises in his tenancy belonging to Shiv Shankar Prasad for his residence. As such, if defendants No. 1 and 2 are evicted from the premises they will not suffer any hardship.
18. In the result the appeal is partly allowed, setting aside the judgment and decree dated 22nd March, 1979, passed by the learned Addl. District Judge No. 1, Jaipur in Civil Suit No. 89 of 1974 (59/78). The plaintiff shall be entitled to get possession from the defendant of the first floor of the suit premises. The defendants shall hand over the possession within a period of six months of the passing of the decree for partial eviction. Thus, the suit of the the plaintiff is partially decreed with respect to first floor of the suit premises. The suit with respect to the eviction of ground floor is dismissed. It is further directed that the plaintiff shall open or construct a separate entry for going to the first floor and shall not do any work which may obstruct the running of the school. It is expected that the defendant shall give full cooperation to the plaintiff in constructing a separate entry for going to the first floor. As a decree for partial eviction has been passed, the plaintiff may apply to the appropriate authority for fixation of standard rent of the remaining premises.
19. The parties are left to bear their own costs.
20. Let a decree be prepared accordingly.