Rajasthan High Court - Jaipur
Jwala Pratap Singh (Shri) vs Shri R.D. Mathur on 15 October, 2003
Equivalent citations: RLW2004(2)RAJ925, 2004(1)WLC465
JUDGMENT Goyal, J.
1. This civil second appeal under Section 100 of the Code of Civil Procedure is preferred by the appellant- tenant against the judgment and decree dated 17/7/2001 whereby learned Additional District Judge No. 1, Ajmer affirmed the judgment and decree of eviction passed on 16/8/1994 by learned Civil Judge (Junior Division), Ajmer City (North), Ajmer.
2. The relevant facts in brief are that the plaintiff/landlord/respondent (hereinafter to be referred as plaintiff) filed a civil suit for arrears of rent and eviction on 21/5/1987 with the averments that the defendant-tenant-appellant (hereinafter to be referred as defendant) is the tenant in the suit premises; House No. B1 at Ajmer on monthly rent of Rs. 400/-. The tenancy was oral. The suit for eviction was based on various grounds including the default in payment of rent for a period of more than six months and reasonable and bonafide requirement of the plaintiff giving details of the said grounds in the plaint.
3. The defendant in his written statement, submitted on 1/6/1988, while admitting himself to be tenant since 1982 denied all the grounds of eviction with a further plea that the plaintiff intends to sell the suit premises and thus his requirement is neither reasonable nor bonafide.
4. 11 issues were framed on 4/4/1989. Evidence of the parties was recorded and the learned trial Judge vide judgment dated 16/8/1994 decided issues No. 1, 3 to 5 & 8 relating to suit premises on tenancy, reasonable and bonafide requirement, comparative hardship, partial eviction and requirement for further construction in favour of the plaintiff while remaining issues No. 2, 6, 7, 9 & 10 relating to default in payment of rent, change in use of suit premises, subletting and material alterations diminishing the value of the suit premises were decided in favour of the defendant. In the result on the basis of the decisions of issues No. 3 to 5 decree of eviction was passed in favour of the plaintiff.
5. Civil Regular First Appeal No. 162/1994 filed by the defendant was dismissed vide impugned judgment dated 17/7/2001.
6. I have heard learned counsel for the parties. Following questions of law were framed on 14/3/2002.
1. Whether where a Tenant has filed an affidavit of his witness with reference to the orders of the Hon'ble High Court after making an oral application to grant time to file the same and where the learned First Appellate Court has not only granted his oral application, after registering it as the new order, but after that the tenant has filed the affidavit and the landlord has also been asked to file his counter affidavit on the next date, which he did not, whether under these circumstances, the learned First Appellate Court can refuse to consider this affidavit on the ground that the tenant has filed only the affidavit, but not alongwith a written application under Order 41 Rule 27 CPC? If not, what will be its effect ?
2. Whether where there have been non consideration of the relevant evidence, the finding would be vitiated ?
3. Whether where the findings of the Courts below are perverse, unreasonable and are factually based on no evidence, these are to be set aside ?
4. Whether where there have been gross misappreciation of evidence, which goes to the root of the matter, the concurrent findings of fact should be interfered ?
5. Whether mere desire to liver independently in a different city away from his sons and his family does constitute a bonafide need/requirement, specially when the case of the Landlord has been that he desires to live in the disputed house with his family and in his family there are his 2 sons, his wife and he himself only ?
6. Whether bonafide need must be judged on an objective view point and not by mere assertion or denial, i.e. on subjective view point; and where the objectivity is lost, it will amount a mistake of law in reaching a just conclusion and will require interference ?
7. Whether where the conclusion is such that any reasonable person would not reach, then also it amounts to a mistake of law and requires interference by the Hon'ble High Court ?
8. Whether when according to suit filed by the Landlord the cause of action has arisen only because of non payment of rent by tenant and not because of bonafide need/requirement of him, then according to law no decree of eviction on the grounds of bonafide need/requirement of landlord can be passed against the tenant ?
9. Whether a party who has to prove his case has to lead "the best evidence" which can be available and in case it is not so done, without any just cause, the adverse inference is to be taken against him ?
10. Whether when a document is not referred by a party in his on oath statement and is not proved according to law, then by mere marking of that document as exhibit on the date of the judgment, in the absence of another party, even after the conclusion of the final arguments, can be used against that another party to decide something against him ?
11. Whether when the landlord has not come with clean hands and has unsuccessfully taken almost all the unternable pleas without any just cause to evict the tenant e.g. the pleas of default in payment, sub letting, change of use, and unauthorised construction, diminishing the value of property etc. and when all these plea of the landlord are found not proved, then whether such type of Landlord can be believed in the eye of law regarding his personal bonafide and reasonable requirement and that too without any corroborative evidence ?
12. Whether where the past conduct of the landlord has been apparently unreasonable, he can be believed by the Courts regarding his bonafide and reasonable requirements, without corroborative evidence ? closing the evidence of appellant on the ground of non payment of cost ?
13. Whether a Landlord, who wants to live after his retirement with his family, consisting of his wife and 2 sons, who is living with them comfortably in another far away city, even without payment of any extra rent by him, the factor of balance of greater hardship can be legally decided in his favour vis-a-vis the tenant who has no house of property of his own in the city where the dispute property is situated and whether in case he is compelled to vacate the house, he will be unable to pay the exorbitant rent, as prevalent now a days and in that case the education of his children will be most adversely effected ?
7. With regard to first question of law, the defendant during pendency of the first appeal filed an application under Order 6 Rule 17 C.P.C. with the averments that the plaintiff wants to sell the suit property and a number of persons visited the suit property along with property dealers in February, 1997, hence the defendant may be allowed to amend his written statement. This application was opposed by the plaintiff. Learned Additional District Judge No. 1, Ajmer dismissed this application being vague vide order dated 28/1/1998. S.B. Civil Revision Petition No. 283/1998 against this order filed by the defendant was dismissed by this Court vide order dated 9/7/1998 with a direction that the defendant shall be at liberty to move the learned lower appellate court under Order 41 Rule 27 C.P.C. to bring subsequent events on the record.
8. The order-sheets recorded by the First Appellate Court on 14/7/1999, 25/8/1999 and 13/10/1999 go to show that the defendant sought time to file an affidavit in accordance with the order of the High Court dated 9/7/1998. The affidavit of one Shambhu Singh was submitted on 25/8/1999 and time was granted to the plaintiff to file its counter but the plaintiff on 13/10/1999 declined to submit any counter affidavit.
9. The learned First Appellate Court declined to consider this affidavit on the grounds that this affidavit is not a piece of evidence under Section 3 of the Indian Evidence Act, 1872, that no order was passed by the court under Order 19 Rule 1 C.P.C. to take this affidavit as evidence and no application under Order 41 Rule 27 C.P.C. was submitted by the defendant with reference to the order of the High Court dated 9/7/1998.
10. Learned counsel for the defendant submitted that refusal to consider this affidavit in evidence was illegal as this affidavit was submitted with regard to subsequent events and under order of the High Court dated 9/7/1998 and the First Appellate Court granted oral permission and further allowed opportunity to the plaintiff to submit counter affidavit. He placed reliance upon Priya Bala Ghosh (Smt.) and Ors. v. Bajranglal Singhania and Anr. (1), and Ramesh Kumar v. Kesho Ram (2). Learned counsel for the plaintiff contended that the First Appellate Court rightly declined to consider this affidavit. He placed reliance upon Jagdish v. Smt. Premlata Rai (3).
11. 1 have considered the said submissions. Section 3 of the Indian Evidence Act, 1872 deals with interpretation clause of certain terms. It defines the term "Evidence" as under.
"Evidence".-"Evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
A perusal of these provisions clearly shows that evidence by way of affidavits is not barred under Section 3 of the Indian Evidence Act and provisions of Rule 1 Order 19 C.P.C. provides for evidence by affidavits. According to Rule 1 Order 19 C.P.C. any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. No doubt, the defendant did not submit an application under Order 41 Rule 27 C.P.C. as observed by this Court vide order dated 9/7/1998. But a perusal of the order-sheets dated 14/7/1999, 25/8/1999 and 13/10/1999 goes to show that the First Appellate Court granted oral permission to the defendant to submit affidavit of Sh. Shambhu Singh containing the subsequent events, that affidavit was taken on record and the plaintiff sought time to file counter affidavit, time was allowed by the First Appellate Court but the plaintiff subsequently declined to file any counter affidavit. It is also evident from the said order-sheets that no prayer was made on behalf of the plaintiff for cross-examining the deponent Sh. Shambhu Singh. In Jagdish's case (supra), this Court observed that in the ordinary course, an affidavit cannot be used as evidence to prove a particular fact unless the Court permits the person who wants to produce affidavit of the witness as evidence. In the instant case, the First Appellate Court granted oral permission to the defendant to file the affidavit of Sh. Shambhu Singh with reference to the order of this Court dated 9/7/1998. In Priya Bala Ghosh (Smt.) and other's case (supra), the Hon'ble Supreme Court held that the relevant provisions of the law should not be construed in a hypertechnical manner without keeping in mind the fact that Rent Restriction legislations were enacted to protect the tenants from eviction. In Ramesh Kumar's case (supra), it was held by Hon'ble the Apex Court in para 9 that when subsequent events are pleaded in the course of an appeal, the court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisaged in Rule 1 Order XIX C.P.C. The court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it and the procedure is not be burdened with technicalities. In view of the aforesaid discussion, the First Appellate Court was under duty to consider the said affidavit of Sh. Shambhu Singh and thus committed illegality in refusing to consider this affidavit. Its effect will be considered in the later part of the judgment.
12. On remaining questions of law i.e. question No. 2 to 13, learned counsel for the defendant submitted that the courts below failed to consider the relevant evidence and it is a case of gross misappreciation of evidence and thus the findings are perverse, unreasonable and are based on no evidence. According to learned counsel Sh. Shah, the plaintiff's requirement is pleaded in para 4 (b) of the plaint that the plaintiff shall retire from service on 31/5/1989 and thereafter he shall settle at Ajmer along with his family members and his family consists of the plaintiff himself, his wife and one unmarried son. He next submitted that the elder son of the plaintiff is residing at Ranchi along with his family members and the daughter of the plaintiff is already married; that there is no evidence on record about younger son of the plaintiff as to where he is presently residing and what he is doing at present; that the plaintiff failed to examine his wife and sons that as to whether they would reside with the plaintiff at Ajmer; that there is no evidence that the plaintiff or any members of his family particularly the younger son ever came to Ajmer after filing the present suit; that the plaintiff withheld the best evidence with regard to his retirement from service and the best evidence could have been the retirement order; that there is no evidence to show that the elder son of the plaintiff would settle at Ajmer, rather he has settled at Ranchi where he is in service; that it appears to be a case of mere desire of the plaintiff and his real intention was and is to sell this house and this intention was well proved vide letters Ex. A10 dated 4/1/1985, Ex. A1 dated 22/1/1985 and Ex. A11 dated 27/9/1985; that the explanation given by the plaintiff with regard to these letters was neither pleaded in the plaint nor by way of rejoinder; that such intention of the plaintiff still exists as is clear from the affidavit of Sh. Shambhu Singh; that Ex. C1 letter was never proved by the plaintiff and it was marked as C1 by the court on 16/8/1994 after hearing final submissions in this case; that it was specifically pleaded in ra 6 of the plaint that the cause of action accrued on 1/12/1984 when rent for the month of November, 1984 became due and remained unpaid and thereafter the plaintiff wrote three letters Ex A1, Ex. A10 and Ex. A11 showing his intention to sell the suit premises and the suit for eviction was filed on 21/5/1987 and all these facts clearly establish that the plaintiff's whole intention was to sell this house and the plaintiff asked the defendant vide letter Ex. A11 to purchase this house for a sum of Rs. 2 lacs; that the bonafide need should have been judged on an objective view point and mere assertion or denial was not sufficient to arrive at a conclusion that the plaintiff's requirement is reasonable and bonafide; that the plaintiff approached the court not with clean hands as he raised a number of grounds for eviction apart from the ground of reasonable and bonafide requirement and except this ground of reasonable and bonafide requirement, the plaintiff failed on all the remaining grounds; that the plaintiff is residing with his elder son at Ranchi even without payment of any extra rent, thus the factor of balance of greater hardship lies in favour of the defendant as the defendant has no house of his own at Ajmer and he will be unable to pay the exorbitant rent as prevalent now a days and thus the education of his children will be adversely affected. Sh. Shah placed reliance upon following judgments. In Variety Emporium v. V.R.M. Mohd. Ibrahim Naina (4), wherein it was held that the First Appellate Court decided the question of landlord's bonafide requirement by the application of a formula which confuses 'requirement' or 'need' with 'desire' and the High Court refused to apply its mind to a question which, if examined, could have altered the course of justice and in such a situation Supreme Court's interference is called for. Further on pleading of the respondent that he was incurring loss in the wholesale business, it was held that adverse inference should have been drawn against the respondent for non-producing of documents like balance-sheet, income tax returns and account books of the firm. In Shri Sheena Naik v. Shri Lawrence D'Souza (5), wherein Karnataka High Court held that bonafide requirement means something more than a mere wish or desire. Similar view was taken by this Court in Bhagirath v. Ram Prasad and Anr. (6). In Jagdish Singh v. Natthu Singh (7), it was held that concurrent findings of fact vitiated by non-consideration of relevant evidence or by essentially wrong approach can be set aside by High Court. In Mohd. Yunus v. Gurubux Singh (8), it was held that where there is a gross misappreciation of evidence which goes to the root of the matter, certainly the second appellate court can exercise its jurisdiction. In P.V. Papanna and Ors. v. K. Padmanabhaiah (9), it was held that subsequent events on the point of bonafide requirement of the landlord may be taken into consideration and personal need must exist not only on the date of filing of the eviction suit/petition but must also continue to exist during revision or appeal till final decree or order. In Rakesh Gupta v. Ahmed Farooq (10), similar view was taken that ground for eviction is not only required to be in existence but should continue until the decree is executed or tenant is actually evicted. It was also held that facts sought to be brought by way of amendment or sought to be considered as subsequent events under Order 41 Rule 27 are not independent controversy in itself. In Hasmat Rai and Anr. v. Raghunath Prasad (11), it was held that requirement must continue to exist till final determination of the case, in Shadi Singh v. Rakha (12), it was held that subsequent events can be taken note of and the relief would be moulded suitably. In J.C. Mandoza v. J.L. Martin (13), it was held by this Court that the mere fact that the plaintiff has also the intention to come back to Ajmer to reside in the suit house is not sufficient to hold, as the matter exists today, that he requires the suit house reasonably and bonafide and something more than the mere assertion is required to establish genuineness of the need. In T. Sivasubramaniam and Ors. v. Kasinath Pujari and Ors. (14), it was held that the need must be genuine, honest and conceived in good faith and mere desire to live independently of father does not constitute need or requirement of the tenanted premises. In Govind v. Dr. Jeetsingh (15), it was held that the need is reasonable and bonafide must be judged from the objective view point and not merely by assertion or denial of the parties. In Gopal Krishnaji Ketkar v. Mohammed Haji Lalif and Ors. (16), it was held that a party in possession of best evidence which would throw light on the issue of controversy withholds the same, court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. In Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors. (17), it was held that mere marking of a document as exhibit does not dispense with its proof. In Shri Hafazat Hussain v. Abdul Majeed (18), it was held that concurrent findings should not be disturbed in second appeal under Section 100 C.P.C., but this is not an absolute rule as exceptions are there.
13. Per contra, learned counsel for the plaintiff submitted that both the courts below arrived at concurrent findings of the facts having considered all the material evidence available on the record and no case of non-consideration of the relevant evidence or gross misappreciation or wrong or non-reading of evidence is made out; that it is not a case of mere desire of the plaintiff to reside at Ajmer; that examination of plaintiff's wife and sons was not necessary in this case; that this fact was never disputed by the defendant that the plaintiff did not retire on 31/5/1989; that the plaintiff is residing with his elder son at Ranchi as he has no other house at Ajmer to reside; that mere writing of these three letters would not prove only intention of the plaintiff to sell the suit house and the explanation given by the plaintiff in writing these letters was accepted by the courts below and further the letter Ex. C1 makes the position clear and this document was admitted by the defendant before marking it as Ex. C1 ; that the suit is pending since 1987 and during such a long period of pendency it cannot be said that the plaintiff's requirement does not exist in case his son is in service somewhere else; that there is no evidence at all that the plaintiff ever intended to enhance the rent and thus there was and is no other motive on the part of the plaintiff; that mere payment of higher rent would not cause any greater hardship to the defendant and the plaintiff cannot be compelled to reside in a rented house and thus the findings of the courts below cannot be said to be perverse at all and there is absolutely no ground to interfere in this second appeal. He placed reliance upon following judgments. In Sarla Ahuja v. United India Insurance Company Ltd. (19), it was held that on the point of bonafide requirement of the landlord, tenant cannot dictate how landlord should adjust himself without getting the possession of the tenanted premises. In Joginder Pal v. Naval Kishore Behal (20), it was held that requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In R.C. Tamrakar and Anr. v. Nidi Lekha (21), it was held that landlord himself is the best judge of his requirement. In Gaya Prasad v. Pradeep Srivastava (22), it was held that in case of rent and eviction based on bonafide requirement of the landlord, he should not be penalised for the slowness of the legal system. In Smt. Satya Gupta @ Madhu Gupta v. Brijesh Kumar (23), the Hon'ble Supreme Court held that findings of Lower Appellate Court based on facts and appreciation of evidence cannot be reversed in second appeal on the ground that on the facts found by the Lower Appellate Court another view was possible. In Ram Prasad Rajak v. Nand Kumar & Bros. and Anr. (24), the Hon'ble Supreme Court held that question relating to bonafide requirement of premises of landlord is not a substantial question of law in second appeal. Similar view was taken in Sheel Chand v. Prakash Chand (25), by the Supreme Court and it was held that pure question of fact cannot be interfered with by the High Court in second appeal. In Ms. Labanya Neogi (through L.Rs.) v. W.B. Engineering Co. (26), it was held by the Hon'ble Supreme Court that the question whether landlord requires premises for personal use and occupation is a question of fact and finding recorded by the first appellate court after considering the entire evidence on record is not liable to be interfered in second appeal. In Raghunath G. Panhale (dead) by LRs v. Chaganlal Sundarji and Co. (27), the Hon'ble Supreme Court held that the requirement must be both reasonable and bonafide. The word reasonable connotes that the requirement is not fanciful or unreasonable. It cannot be a mere desire. The word requirement coupled with the word reasonable means that it must be something more, than a mere desire but need not certainly be a compelling or absolute or dire necessity. A reasonable and bonafide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other hand. Similar view was taken by the Hon'ble Supreme Court in Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Anr. (28). In reply, it was contended that explanation of the plaintiff with regard to these letters does not find any corroboration from any scheme of the loan as no such scheme was produced by the plaintiff and non-examination of plaintiff's wife and both the sons is sufficient to draw a presumption that the plaintiff did not require the suit house and it was a case of mere desire to get the suit house vacated.
14. I have considered the rival submissions in the light of the judgments referred hereinabove and find no merit in this second appeal. Both the courts below considered the entire relevant evidence available on the record and arrived at concurrent finding that the requirement of the plaintiff is both reasonable and bonafide. No case of non-reading, wrong-reading or misreading of any evidence is made out. Although no different view on the basis of the entire evidence available on the record is possible on the findings of facts arrived at by the courts below, even though assuming that a different view is possible, the findings of the courts below cannot be reversed in the second appeal. No doubt, the requirement of the landlord should be judged on an objective basis and not by mere assertion or denial and mere desire of the landlord is no ground to order for eviction, but it is not a case of mere desire of the plaintiff-landlord to reside in the suit house along with his family members after his retirement. This contention is devoid of merit that the plaintiff-landlord withheld the best evidence with regard to his requirement as the retirement order was not produced. It was the case of the plaintiff from the very beginning that he would retire on 31/5/1989 and thereafter he would settle at Ajmer along with his family. The plaintiff specifically stated in his statement that he retired on 31/5/1989 and there is no cross- examination on this aspect and thus it is not a case where any adverse inference should have been drawn or may be drawn against the plaintiff. The requirement of the plaintiff does not cease to exist merely on the fact that both the sons of the plaintiff did not appear as a witness to say that either of them would reside with his father at Ajmer. In case the younger son of the plaintiff goes somewhere else in connection with his livelihood, the requirement of the plaintiff to reside at Ajmer in suit house does not come to an end. This contention has also no merit that cause of action pleaded in para 6 of the plaint was only that the defendant failed to pay the rent for the month of November, 1984, as a number of grounds of eviction including the reasonable and bonafide requirement were specifically pleaded in the plaint. Further simply on the ground that other grounds of eviction except that of reasonable and bonafide requirement did not find favour with the courts below is no ground to show that the plaintiff approached the court not with clean hands. Much stress was put upon the intention of the plaintiff to sell the suit house and for that three letters Ex. A1, Ex. A10 and Ex. A11 and affidavit of Sh. Shambhu Singh were relied upon. Both the courts below found favour with the explanation of the plaintiff with regard to these letters and 1 find no perversity in the, said conclusion. Mere showing the intention of the landlord at one time to sell the suit house does not mean that his requirement was neither reasonable and bonafide. Ex. C1 letter was rightly considered in evidence. Ex. C1 letter is dated 11/1/1986 and this letter was addressed to the defendant subsequent to above three letters. This letter was admitted by learned counsel for the defendant on 13/9/1989 and thus it was rightly marked as Ex. C1. Further marking exhibit on any document is for identity of a particular document and since it was an admitted document, marking exhibit in no way adversely affected the interest of the defendant. In para 3 of this letter, it was specifically pleaded by the plaintiff that he has decided to settle at Ajmer after his retirement and therefore, the defendant was requested to vacate the suit house. Now comes to the affidavit of Sh. Shambhu Singh which was filed during pendency of the first appeal. This affidavit was sworn in on 25/8/1999 and it was submitted in the First Appellate Court on the same day. According to this affidavit, Sh. Shambhu Singh is a property dealer at Ajmer and he knows Dr. Pradeep Mathur who is nephew of the plaintiff. In September 1996 Dr. Pradeep Mathur informed him (Sh. Shambhu Singh) that the plaintiff wants to sell the suit house and thereafter Shambhu Singh met the plaintiff and his wife at Ajmer and the plaintiff said to him that he wants to sell this house for a sum of Rs. 10-11 lacs. It is further stated in this affidavit that he along with customers visited this house twice or thrice and on one occasion the defendant's wife permitted entry to the suit house and since September, 1996 he along with a number of customers had visited this house from outside. No doubt, the plaintiff failed to submit any counter affidavit but the question is as to whether only on this ground, inference on the basis of this affidavit can be drawn that the plaintiff wanted to sell this house. When this affidavit is examined in the background of the entire facts and circumstances of this case, the result is that this affidavit cannot be relied upon at all. Application under Order 6 Rule 17 C.P.C. was filed by the defendant on 6/3/1997 making the averments that since February, 1997 property dealers and customers are regularly visiting this house for purchasing the same. This application was dismissed being vague and revision was also dismissed on the same ground. According to this affidavit of Sh. Shambhu Singh, nephew of the plaintiff contacted him in this regard in September, 1996 but this fact is not stated in the said application dated 6/3/1997. This fact is also not mentioned in this application that Dr. Pradeep Mathur, contacted Sh. Shambhu Singh. This fact is also missing in this application that Sh. Shambhu Singh along with customers visited this house a number of times. It is also significant to say here that not a single customer has been named either in this application or in the affidavit of Sh. Shambhu Singh. The plaintiff filed the suit for eviction in May, 1987 and he had already obtained decree of eviction in the year 1994 and first appeal preferred by the defendant was pending. Therefore, there seems to be absolutely no reason as to why the plaintiff through his nephew would approach to one Sh. Shambhu Singh for sale of this house. Further the contents of para 4 of the affidavit are contrary to letter Ex. Al dated 22/1/1985 addressed to the plaintiff on behalf of the defendant wherein it is categorically stated that the defendant will not allow to any access of intending buyer to inspect the house, firstly because in Thakur family no person is allowed to enter the house due to family convention, traditions and keeping the privacy in mind, secondly your so called buyers have no right to enter in rented premises. While it is stated in para 4 of the affidavit of Sh. Shambhu Singh that once he along with customers entered the house and the defendant's wife had shown the house to them. As per this affidavit, Shambhu Singh was contacted with regard to sale of this house in September, 1996 and since then Sh. Shambhu Singh is making continuous efforts to search buyer and this affidavit was filed on 25/8/1999 but not a single customer has been named. Further it is also not disclosed as to when and how the defendant came to know about the contents of the affidavit of Shambhu Singh and when and how the defendant came into contact with Sh. Shambhu Singh. In view of the entire discussion made hereinabove, no reliance can be placed upon this affidavit.
15. In the result, this second appeal is hereby dismissed.