Rajasthan High Court - Jaipur
Bastichand Bhanwali vs Dharam Vir Kalia on 16 March, 1989
Equivalent citations: AIR1989RAJ135, 1989(2)WLN478
JUDGMENT Navin Chandra Sharma, J.
1. This is a second appeal by the plaintiff against the appellate decree of the Additional District Judge No. 2, Jodhpur dated April 7, 1981 dismissing his first appeal against the decree of the Additional Munsif No. 1. Jodhpur dt. Oct. 27, 1980.
2. Plaintiff Bastichand Bhanwali is an Advocate practising at Jodhpur. He instituted Civil Suit No. 589 of 1976 against the respondent for his ejectment from the demised premises detailed and described in para No. 1 of his plaint. Ejectment of the defendant-respondent was claimed on the ground that the plaintiff requires the demised premised for the use and occupation of himself and his family and also for using it for his professional purpose as an Advocate. It was alleged that the plaintiff was residing in tenanted premises situated near Singh Pol. Jodhpur. He has his office in Cloth Market also in rented premises.
3. The suit was contested by the defendant. The defendant pleaded in his written statement that he was residing in the suit premises since the year 1960. He denied that the plaintiff reasonably and bonafide required the suit premises for his personal use, It was alleged that the suit premises previously belonged to Khemsingh who had instituted Civil Suit No. 644 of 1974 against the defendant for ejectment on the ground that he needed the premises for the marriage of his daughter Dinesh, However, Dinesh was married and Khemsingh realising that he could not get the premises vacated on the ground alleged by him he, in collusion with the plaintiff, sold the suit premises to the plaintiff. The defendant also alleged that comparative hardship to him would be greater, than to the plaintiff in case a decree for ejectment was passed against him.
4. It appears from the judgment of the Additional Munsif No. 1. Jodhpur that it was argued on behalf of the defendant-respondent that the plaintiff was living in a rented house since the year 1973 and if the rented house was inconvenient to him, he would have made efforts to take another house on rent during the period 1973 to 1976 but he made no such efforts. It was also argued that during the pendency of the suit the plaintiff had sold his ancestral house on August 16. 1978 which goes to show that the alleged requirement of the plaintiff is not bona fide. It was also contended that in the letter sent by the plaintiff to the defendant on June 7, 1976, he had not mentioned that he required the suit premises for his office as well. All these contentions advanced by the defendant before Additional Munsif were rejected by him while giving his findings on issue No. 1 which concerned with the requirement of the suit premises by the plaintiff. The Additional Munsif stated that one cannot easily purchase or take or rent premises as and when he likes. He has to look to the size and location of the house. The Additional Munsif also observed that it was undisputed fact that the plaintiff was living in a rented premises since the year 1973 and his office was also rented room. In such circumstances, the Additional Munsif held, that if the plaintiff wanted to shift to his own house, which he had purchased, the requirement will be held to be reasonable and bona fide. With regard to the ancestral house, it was stated that the plaintiff had only a share in it and it was insufficient to meet his requirement. If the accommodation in the ancestral house would have been sufficient, there was no reason for the plaintiff to have resided with his family in a rented house since the year 1973. It was further held that even if the requirement for office was not accepted for the reason that the plaintiff did not mention about it in his letter dt. June 7, 1976, the plaintiff need for the demised premises for his own use and occupation was established. In his notice dt. June 9, 1976, the plaintiff had mentioned the requirement for his office purpose as well Thus the Additional Munsif decided issue No. 1 in favour of the plaintiff and held that the plaintiff reasonably and bona fide required the suit premises for the use and occupation of himself and his family members and for running his professional office as well. Issue No. 2 related to comparative hardship. This issue was decided by the Additional Munsif against the plaintiff. It was stated that both sides had hardship but the question was as to who would suffer greater hardship, for the defendant, it was stated that he was an old man aged 74 years or 75 years and it was difficult for him to get another house on rent. The Additional Munsif also noted that plaintiff's landlord Pukhraj examined in the case had admitted that the plaintiff had delivered him one room in the year 1977, i.e. after the institution of the suit. According to the Additional Munsif the defendant will be on roads if he was ejected. The plaintiff was paying Rs. 9/- per month for his residential premises and office as rent and was getting Rs. 120/- per month from the defendant. It was also noted that plaintiff's landlord of the tenanted premises as well as of the office has not filed any suit for ejectment against the plaintiff. Taking all these factors into consideration, the Additional Munsif held that the defendant will suffer greater hardship in case a decree for ejectment is passed against him. In view of his findings on issue No. 2 against the plaintiff, the Additional Munsif dismissed the plaintiffs suit for ejectment of the defendant.
5. Aggrieved by the dismissal of his suit the plaintiff filed Civil First Appeal No. 32 of 1980 which was dismissed by the Additional District Judge No. 2, Jodhpur on April 7, 1981. The Additional District Judge reversed the findings of the trial Court on issue No. 1 and he held that the plaintiff does not require the suit premises for the use and occupation of himself and his family members and for his professional office. After considering the accommodation in the tenanted premises occupied by the plaintiff and in the suit premises, he held that the suit premises will not meet the alleged requirement of the plaintiff as he had more accommodation which is in the tenanted house. It was also mentioned that the plaintiff suppressed the fact of his handing over possession of one room to his landlord Pukhraj. Apart from that the plaintiff had also sold the share allotted to him i n the ancestral house and this fact was also not disclosed in the plaint. The Additional district Judge stated that in the demised premises there were only three rooms and if the plaintiff shifts to the demised premises he shall have only two rooms with him for the residence of himself and his family and the third room will be needed by him for his office. Thus the demised premises would be insufficient for the purpose of the plaintiff. It was also held that it was not established that the tenanted premises with the plaintiff are not airy or that on account of old age his father cannot go upstairs. There was 7 wide street on the east of the tenanted premises occupied by the plaintiff and another street 11 wide on southern side. On the basis of these fin dings and reasonings, the Additional District Judge held that the plaintiff did not require the suit premises reasonably and bona fide for himself and for his family members and for his professional purpose. The Additional District Judge agreed with the findings of the Additional Munsif on issue No, 2 that the defendant will face greater hardship than the plaintiff in case a decree for ejectment is passed. He stated that defendant was an old man and remains ill and that no rented premises were available in Mohanpura. He also mentioned that there wereS persons in the family of the defendant. It was also said that the fact that the tenanted premises occupied by the plaintiff and his office are at a distance from Court premises, that cannot be a consideration in examining the comparative hardship. Thus deciding both issues Nos. 1 and 2 against the plaintiff, the Additional District Judge dismissed the appeal of the plaintiff on April 7. 1981. The plaintiff has come in second appeal before this Court.
6. It was contended by the learned Counsel for the plaintiff-appellant that the plaintiff being the owner of the demised premises, he cannot be compelled to live for ever in a rented house. The learned Counsel urged that the landlord cannot be denied possession of the suit premises simply on the ground that the defendant will be put to trouble of searching another house and will have to pay higher rent. The counsel for the plaintiff questioned the findings of the Additional District Judge on issues Nos. 1 and 2 and contended that no such findings could reasonably be given in the facts and circumstances of the case. It was also contended that the Additional District Judge wrongly rejected the plaintiffs application under Order 41, Rule 27, C.P.C. An application was also filed before this Court by the plaintiff -appellant that the suit for ejectment was filed against the defendant on October 14, 1976 and since then subsequent events have taken place which may be taken into consideration. A reply has been filed on behalf of the defendant-respondent to this application on March 6, 1989.
7. As against this, the learned Counsel for the defendant-respondent vehemently urged that under Section 100 of the Code of Civil Procedure as amended in the year 1976, no second appeal lies on any of the grounds urged on behalf of the plaintiff-appellant. A second appeal lies only if a substantial question of law is involved and there is none in the instant case. It was contended that findings on issues Nos. 1 and 2 are findings on questions of fact and they cannot be interfered in second appeal and this Court cannot reappreciate the evidence even if it may hold a different view. It was also urged that both the Courts have been concurrent in holding that greater hardships would be caused to the defendant in case a decree for ejectment is passed and this finding was based on appreciation of evidence which cannot be interfered.
8. It may be mentioned that when this appeal was admitted on August 24, 1981, three substantial questions of law were framed by the learned Judge admitting the appeal. The first question was whether the Additional District Judge erred in law in rejecting the plaintiffs application under Order 41, Rule 27, C.P.C. The second question framed was whether the Additional District Judge erred in law in reversing the findings on issue No. 1 without disbelieving the reasons given by the trial Court and ignoring important relevant evidence. The third question framed was whether the findings on the question of comparative hardship was perverse and could not be reasonably reached While this second appeal was being heard it appeared to this Court that on certain points there was no dispute and they were that the plaintiff-
appellant was living and carrying on his profession in rented premises, that thereafter-
he had purchased the suit premises and he wants to shift his residence and office in the house which he had purchased. This Court was of the view that one more substantial question of law arises in this second appeal and therefore, an additional question was formulated on March 7, 1989 which is as under:--
"Where the landlord, who is himself living-in a rented house and also carrying on his profession therein, purchases a house of his own and wants to leave the rented house and to shift in his own house for residence as well as professional purpose will it or not amount to a reasonable and bonafide requirement of the demised premises by him for his own use and occupation?"
9. The counsel for the parties were given opportunity to address on this additional substantial question of law formulated and arguments on it were also heard.
10. Mr. M. M. Vyas appearing for the respondent referred to the decision of their Lordships of the Supreme Court in Madamanchi Ramappa v. Muthaluru Bojjappa. AIR 1963 SC 1633. In order to support his contention that the High Court in second appeal cannot interfere the findings of lower Courts on simple question of fact on ground of insufficiency of evidence. In the above decision of the Supreme Court the plaintiffs case was that survey N. 440-B had been purchased by their father and that they were in its possession since the time of their father. Both the Courts found as a fact that the plaintiffs had proved both their title and possession within 12 years before the date of the suit. The effect of these findings was that the property when it was purchased was not shown to be more than Rs. 100/- and since the evidence about the oral sale was not satisfactory the Courts below considered evidence about, possession with a view to decide whether the plaintiffs had established a possessory title. The possession of the land was admitted to be with appellant's family for more than the statutory period and as such, it was open and continuous. These findings were based on appreciation of oral and documentary evidence examined in the light of the circumstances of the case and probabilities no question of construction of any document arose nor did any question of drawing an inference of once of law arose in the case. The question which arose were question of fact and on that there were concurrent findings of the two Courts. Their Lordships examined the limits of the power conferred on the High Court in dealing with second appeal. They referred to the decision of the Privy Council in the case of Mt. Durga Choudharin v. Jawahir Singh, (1890) 17 Ind App 122 and the earlier decision of the Supreme Court in Daily Pattabhiramaswamy v. S. Hanvmayya, AIR 1959 SC 57 at p. 59 and K. Ramchandra Ayyar v. Ramlingam Chattiar, AIR 1963 SC 302 and held that the admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which Courts of fact have acted was admissible and relevant it was not open to a party feeling aggrieved by the finding recorded by the Courts of fact to contend before the High Court in second appeal that the said evidence was not sufficient to justify the findings of fact in question. This position has always been accepted without dissent. It was also observed that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however, important they may be, must yield to a clear and express provisions of the law.
10A. No doubt this is the well settled position of law that findings of fact arrived at by the Courts below cannot be disturbed in second appeal by saying that there was insufficient evidence or incorrect inferences were drawn from the evidence by the Courts below. It is also clear that in Section 100 of the Code of Civil Procedure after its amendment in 1976, it has been specifically stated that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to High Court, if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of Section 100 provides that where the High Court is satisfied that a substantial question of law is involved in any case. It shall formulate that question. Then proviso to Sub-section (5) provides that nothing in Section 100 shall be deemed to take away or abridge the power of the Court to hear for reasons to be recorded the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. It has already been stated that while hearing this second appeal it appeared to this Court that on admitted facts, another substantial question of law then originally framed on August 14, 1981 arises and the additional substantial question of law was formulated on March 7. 1989.
11. This Court in second appeal will not disturb the findings of fact arrived at by the Courts below. On the question of reasonable and personal necessity, the trial Court had decided issue No. 1 in favour of the plaintiff. However, it had decided issue No. 2 relating to comparative hardship against the plaintiff. So far as the first appellate Court was concerned, it decided both issues Nos. 1 and 2 against the plaintiff. We have first to see what are the findings of fact given by the Courts below. On the question of reasonable and bona fide necessity, the findings of fact given by the additional District Judge have already been narrated above. In substance the findings of the Additional District Judge are about the accommodation in the tenanted house and office occupied by the plaintiff, the accommodation in the suit premises, something about family members, that the plaintiffs suppressed the handing over of one room to his landlord Pukhraj during the pendency of the suit, his suppressing about the ancestral property and that the accommodation in the demised premises is not greater than in the premises in which the plaintiff is living. On the question of comparative hardship, the findings of fact are that the defendant is an old man and remains ill and there are no rented premises available and further that the distance of the premises occupied by the plaintiff from the Court premises cannot be basis for comparative hardship to the plaintiff. I am not going to disturb any of these findings of fact in second appeal. Only this much may be mentioned, that it was Pukhraj P.W. 2 who was asked in cross-examination and he stated that he had taken back one room in first floor from the plaintiffs as he needed that room for the purpose of studies by his children. This room was stated to have been taken about one year before the recording of his statement. The statement of Pukhraj was recorded on March 22,1978. The suit had been filed by the plaintiff on Oct. 14. 1976 that is more than one year before the recording of statement of Pukhraj. Thus when the suit was filed by the plaintiff the room in quest ion had not been taken back by the plaintiff's landlord even according to the statement of Pukhraj which is the solitary statement on this point. There was, therefore, no question of suppressing this fact in the plaint.
12. The fact found clearly are that the defendant was given the suit premises on rent at the rate of Rs. 80/- per month in the year 1960 by Khemsingh who was then the owner of the house. The plaintiff along with his family is residing in a rented house since the year 1973 near Singhpol Jodhpur. The plaintiffs landlord of the tenanted house is Pukhraj. The plaintiff is an Advocate and he has his office in cloth market and that also is on rent. The previous owner of the suit premises Khemsingh had filed a suit for ejectment against the defendant on the ground that he needed if for the marriage of his daughter, but his daughter was married before the suit was decided. Thereafter the plaintiff purchased the suit premises from Khemsingh sometime in the year 1976 and soon thereafter served a notice on the defendant for vacating the suit premises. It is also a finding that the plaintiffs family consisted of plaintiffs father who was an old man of about 81 years. The plaintiff has got one daughter and three sons who are all students. The plaintiff has write named Smt. Kusum. These persons were living in the tenanted premises since 1973.
According to the version of the defendant in their written statement his family consists of fourteen members, The defendant is also an old man. It is also finding that ft is difficult for the defendant to get another accommodation in the locality where he is living. The tenanted premises in the occupation of the plaintiff consist of one room in the ground floor with a 'Saal' towards the west of the room a kitchen, bath room, latrine and verandah. In the first floor the plaintiff has got one room measuring 5' 10" X 9', arid in the second floor he had one room measuring 17' X 10' 3''. The demise premises in occupation of the defendant are three rooms with a box room. kitchen, store, latrine, bathroom, chowk and stair-case. There is vacant space on three sides of the demise premises. The plaintiff's tenanted house is situated in the city near Singhpol while the suit premises with the defendant are situated in a newer and better locality in Polo ground 1st Paota, Jodhpur. These are undisputed facts in the case and have also been found as a fact by both the courts below.
13. Before proceeding further, I may dispose of one of the points taken by the appellant that the Additional District Judge was wrong in rejecting his application under Order 41. Rule 27, C.P.C. for production of income-tax assessment of the plaintiff, in my view no interference is called for in the order of the Additional District Judge, This order has come into existence on May 2, 1980 and could be produced before the trial Court. I hold that the Additional District Judge has not erred in law in rejecting the plaintiffs application under Order 41, Rule 27, C.P.C.
14. The only substantial question of law in my view involved in the case is that which was framed on March 7, 1989 and which has already been reproduced above. I shall proceed to deal with this question. A shelter with a roof on his head and pursuit of happniess, subject to his means, is the normal and ordinary desire of a human being. Apart from that it is legal and statutory right of a person to actually possess the property owned by him. It would be purely against alllogic to ask a landlord owner to opt for rental premises instead of his own building. There is no rule of flaw that the landlord can never get the occupying tenant vadated from a demised premises which the landlord plaintiff purchased with intention to live therein and more so when it is the only property of a plaintiff-landlord., Just as a tenant can be ejected under Section 13(1)(i) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 on the ground that the tenant has built or acquired vacant possession or had been allotted a suitable residence a landlord can also very well eject the tenant on the ground that he has purchased the property for his own use and hei cannot be compelled to live indented premises for ever. It was never the intention behind, the enactment of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 that a landlord should be disentitled to occupy his own house and continue to live in a rented house merely because the premises at the time of his purchasing or acquiring the same had been rented out by its previous landlord. It is not a case where the plaintiff let out the suit premises to the defendant after he had purchased the same. It is also not a case here the landlord own any other property except the suit premises. The landlord cannot be denied his statutory right to possess and live along with his family in the property which by his means he has purchased for self occupation. It is a question of law on the admitted findings whether in such facts and circumstances as found by the Courts below the premises can be said to be required reasonably and bona fide by the landlord. No mala fides were suggested that the plaintiff wanted to dispose of this properly after getting it vacated or to increase the rent by again letting it out.
15. In Sonabati Devi v. Achayatanand Dey, (1983) 1 Ren CJ 528 (Cal) it was that a landlord living in a rented premises would be entitled to recover possession of his own premises let out to a tenant. In General Auto Agency v. Hazari Singh, AIR 1976 Raj 56 the plaintiff had purchased the demised premises and filed a suit for ejectment. It was held that the plaintiff had no suitable alternative accommodation where he could shift from the rented house and the need for the premises assumed importance. In Gopal Rao Shidaoji v. Kashappa Chandara Shekhar, 1970 Ren CJ 21 (Mys) it was held that when the owner of a house desires to reside therein, one need not look upon that desire as inspired by any dishonest motive, but that on the contrary it is a most natural human desire to reside in one's own house. To the same effect is the decision in Smt. Chandrawati v. Naraindas, 1970 Ren CR 85 (Punj). In Smt. Chander Kali Bail v. Jagdish Singh Thakur, AIR 1977 Sc 2262 it was observed in relation to the landlord that the premises must be his own meaning thereby that they must be owned by or belong to the landlord. It was consequently held that tenant shop in occupation of the plaintiff was not sufficient to deny him a decree for eviction against his tenant.
16. In Gopal Rao's case the question of comparative hardship was also considered in which it was argued that the landlord was already in occupation of the rented premises, the learned Judge stated that if only it is expected and pushed to the logical extreme on owner, if happens to occupy a rented house, can never apply for recovery of possession of his own house. The question of availability other reasonable accommodation in the context of the dispute between the landlord and the tenant should normally be regarded not as a choice between rented premises and one's own premises but probably a choice among more than one premises owned by the landlords. As already stated, the plaintiff does not own any other property except the suit premises. In Jainarin v. Panna Lal. 1978 WLN (UC) 39 and Kalu Lal v. Mangilal 1978 WLN (UC) 64 this Court that to question of bona fide and reasonable necessity and the question of comparative hardship are interlinked with a each other and it would not be desirable that they are decided in piecemeal.
17. The above decisions clearly lend support to my view that where a landlord living in a rented house and also carrying on his profession in a rented room, purchases a house of his own and wants to leave the rented house and to shift with his family in his own house for residence or/and professional purpose, it would amount in law to reasonable and bona fide requirement of the demised premises by him unless the tenant proves mala fides. No such mala fides were in the instant case proved. It may also be mentioned in that the suit premises are situated in a better locality than the rented premises in which the plaintiff under compulsion has been living since 1983.
18. It may further be mentioned that the plaintiff-appellant has by his application dated January 18, 1989 brought to the notice of the Court some subsequent events, a reply has also been filed by the defendant-respondent to the application of the plaintiff. Just as subsequent events disabling the landlord from seeking eviction can be taken notice of as laid down in Pasupaleti v. Motor and General Traders, AIR 1975 SC 1409, the subsequent events which go to show the increasing necessity of the landlord can also be looked into. The general principle that rights of the parties should be determined as on the date of the suit are ancient vintage. In the case of Patterson v. State of Alabama, (1934) 294 US 600 at p. 607 it was observed that the Courts have frequently held that in the exercise of appellate jurisdiction, we have power not only to correct in the judgment under review but to make such disposition of the case as justice requires and in determining what justice does require, the Court is bound to consider any change either in fact or in law, which has supervened since the judgment was entered.
19. The important subsequent events are that while the family of the plaintiff is a growing family in the sense that his daughter and three sons who were studying in IX, VII, V and IIIrd classes in the year 1977 when the suit was filed, have by now grown up and thus his family has increased. As against this the defendant had discharged all his responsibilities. His yongest son Madhusudan had gone to a foreign country. His other sons G. N. Kalia and K. N. Kalia have admittedly shifted to other houses. The defendant in his reply has said that they have shifted temporarily. No reason has been assigned as to why they have only shifted temporarily to other houses. The daughters of the defendant I have been married. His wife has expired. Thus the number of his dependant family members have consideredly reduced and his need for the accommodation is not that much which it was before. It is true that the number of family members of the plaintiff have grown up but how can we ignore that the plaintiff can only make additions in his own house after he gets his possession and not before it. Comparative hardship in the facts and circumstances of this case is clearly greater to the plaintiff than to the defendant.
20. Consequently, I allow this appeal set aside the decree of the Additional District Judge No. 2, Jodhpur, dated April 7 1981 affirming the decree of the Additional Munsif No. 1, Jodhpur dated October 27, 1080, and decree the suit of the plaintiff for ejectment of the defendant from the demised premises detailed and described in para No. 1 of the plaint. The plaintiff will be entitled to recover damages for as and occupation at the rate of Rs. 120/- per month after adjusting the amount already deposited by the defendant in court till the defendant vacates the demised premises. Since the defendant will have to search for another house. I allow the defendant six months' time to vacate. The plaintiff will get costs throughout from the defendant.