Decided on August 02,2005

NATHULAL Respondents


VIJAY KUMAR SHRIVASTAVA,J. - (1.) THIS second appeal is directed against the judgment and decree dated 2-4-1990 passed by 1st Additional District Judge, Raigarh in Civil Appeal No. 43-A/89, by which the appeal filed by the defendant against the judgment and decree dated 6-10-1987 passed by IIIrd Civil Judge, Class II, Raigarh, in Civil Suit No. 33- A/87 decreeing the suit for eviction, has been dismissed.
(2.) SAGAR Mal Agrawal filed a suit for eviction against defendant Mahesh Prasad on the ground that the suit accommodation occupied by the defendant Mahesh Prasad in the capacity of tenant is required by him for residential purpose of his own and his family members and is required bonafide. He has not other suitable house in his occupation at Raigarh. Mahesh Prasad contested the claim and averred that the house in occupation of Sagar Mal Agrawal is double storey consisting 18-20 rooms and is sufficient for residence of Sagar Mal Agrawal and his family members.
(3.) LEARNED Trial Court, after due evaluation of the evidence held that the suit accommodation is required bonafide by the plaintiff and his family members for their residence and no other suitable accommodation is available with plaintiffs in Raigarh city and accordingly decreed the suit for eviction. Being aggrieved by the said judgment and decree dated 6-10-1987, defendant preferred an appeal bearing No. 43-A/89. During pendency of the appeal Sagar Mal Agrawal died and his legal representatives were brought on record. During pendency of the appeal defendant filed an application under Order VI, Rule 17 of the Code of Civil Procedure (for short, "the Code") averring that the plaintiffs have made some construction and now they have total 11 rooms in his house. The suit has been brought for the residence of Sagar Mal Agrawal who is now dead. Plaintiffs opposed the application on the ground that the defendant in his defence has already taken the ground that the house in possession of Sagar Mal Agrawal has 18-20 rooms. Plaintiffs further pleaded that the suit has been filed not only for the requirement of Sagar Mal Agrawal, but also for the residence of his family members. Defendant also filed an application under Order 41 Rule 27 of the Code for taking document on record by which he sought to tender the copy of decree passed in Civil Suit No. 33-A/87 on 1-1-1990 vide which eviction decree of other house in possession of Jagdish was passed in favour of the plaintiffs.;

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