LODHA, J. - (1.) THE suit out of which this appeal arises was instituted by the plaintiff appellants in the Court of Munsif (West), Ajmer on 3rd March 1966 for ejectment and arrears of rent and other charges amounting Rs. 200, THE plaintiffs are Smt. Raj Rani, her two sons, 4 daughters and her husband's brother Dwarka Nath. THEir case as set out in the plaint is that the house in question bearing AMC XII/71 situate at Hathi Bhata, Ajmer, was rented out to the respondent on a monthly rent of Rs. 22. It was urged that the defendant did not pay rent for 4 months from 1-10 1965 to 31st. January, 1966 and so also electric and water charges as well as house tax for the aforesaid period, and consequently the plaintiff claimed rent, mesne profits, and other charges as mentioned above for the period from 1-10-1965 to 28th February, 1966. It was alleged in the plaint that the house in question was required reasonably and bonafide for the personal necessity of the plaintiffs. THE plaintiffs also allege that the defendant had created nui-snce in the promises by carrying on dying work therein even though the premises were originally rented out only for residential purposes. Thus the plaintiff's claim for ejectment was based on 3 grounds viz - (i) Default in payment of rent for 4 months, (ii) Reasonable and bonafide personal necessity of the landlord, (iii) Creation of nuisance.
(2.) THE defendant in his written statement admitted to have taken the suit house on rent from plaintiff appellant No. 8 Dwarkanath at the rate of Rs. 22 per month, but pleaded that he was to pay only electric charges besides the rent but water charges and house tax were not to be paid separately. He also denied having committed default in payment of rent. THE alleged personal necessity of the landlord was also denied. After recording the evidence produced by the parties the learned Munsif by his judgment dated 16th July 1966 dismissed the plaintiff's suit for ejectment. As regards arrears of rent since the defendant had deposited the same, the plaintiff was directed to withdraw them. Aggrieved by the judgment and decree of the trial Court the plaintiff filed appeal which was dismissed by the learned Additional Civil Judge, Ajmer by by his judgment dated 18th December, 1968. Consequently the plaintiff has come in second appeal in this Court. Learned counsel for the appellants has argued that the learned Additional Civil Judge. erred in holding that the plaintiff No. 8 Dwarkanath and the members of his family could not be considered as a part of the family of Smt. Rajrani and her sons and daugthers. It has been argued by him that if the total number of members of families of Smt. Rajrani and Dwarkanath is taken in to consideration, there would not be the least doubt that the apartments in their possession at present, are highly insufficient and the permises in question rented out to the defendant are required reasonable and bonafide by the plaintiffs for their personal use. It has been also argued that the plaintiffs have succeeded in proving creation of nuisance by the defendant in the rented premises. Lastly learned counsel contended that a decree for arrears of rent and electric charges should have been passed in favour of the plaintiffs. J The first question for determination in this appeal is as to whether all the plaintiffs constitute one family and consequently their need should be considered as the need of the landlord. It is interesting to note that in the plaint it was alleged that the house belongs to the plaintiffs and that the defendant is the tenant of the plaintiffs. In the course of evidence P. W. 1 Smt. Rajrani (Plaintiff No. 1) stated that the house in question exclusively belongs to her sons & that Dwarkanath who is her husband's younger brother, looks after her house hold affairs and recovers the rent on her behalf. It is further stated that there are 10 children in her house out of whom 5 are her sons and daughters and 5 are of Dwarkanath who had always been living with her and was looking after her affairs. In the course of cross-examination she has stated that Dwarkanath has no share in the house in question. P. W. 2 Dwarkanath (plaintiff No, 8) has also stated that he recovers rent and looks after the work of his brother's wife Rajrani. He has further stated that he and his children reside with Smt. Rajrani and there are 14 members in all in the family and that they have a common mess. It is further stated by him that only 9 rooms, one kitchen and a store are in their possession. He has nowhere asserted his ownership to the house in question. D W. 1 (Ramanlal (defendant) has stated that he was admitted as a tenant in the house in question by Dwarka Nath on a monthly rent of Rs, 22 In the course of cross-examination he has said that the tenancy is oral and all the plaintiffs live in the same house. He has further admitted that the plaintiff Rajrani is a widow and Dwarkanath is her husband's younger brother and they live along with their children in the same house. It is further stated by him that Dwarkanath's mother also lives in the same house. From the evidence led by both the parties it becomes clear that the house in question as a matter of fact, belonged to Onkarnath, husband of plaintiff No. 1 Smt. Rajrani after whose death Smt. Rajrani and her sons and daughters plaintiffs No. i to 7 became its exclusive owners and they alone can be said to be the landlords, in the true sense of the term. The averment contained in the plant that the house belongs to all the plaintiffs including Dwarkanath is rather very lose and not correct. True it is that Dwarkanath has admitted the defendant as a tenant in the house and settled the rent with him but obviously he did so as a representative of plaintiffs No. 1 to 7, to whom the house exclusively belongs. The next question which arises for consideration is whether while taking into consideration the necessity of the plaintiffs No. 1 to 7 for additional accommodation the family of Dwarkanath should also be taken into account. The learned Additional Civil Judge has held that Dwarkanath and his family could not be taken into consideration to judge the need of the landlord inasmuch as Dwarka Nath has no title to this property and is not joint in earnings with plaintiffs No. l to 7. He has further observed that by messing together only, the plaintiffs cannot claim that the family of Dwarkanath should also be considered as a part of the family of landlord. In this connection he has placed reliance on Lalchand vs. Mst. Mohanibai (1 ). It was observed in that case that broardly speaking the word "family" would include a person's wife or husband and their children; or his common household; his/her brother and sisters constituting a joint Hindu Family; a widowed daughter or her children, widowed sister or her children, a deceased brother's wife or her children, all these being dependent on and living with him or her. The learned Judge further observed as follows - But again, broadly speaking, it will be hardly permissible to include other relations as falling within this phrase except perhaps under very exceptional circumstances which for obvious reasons it is impossible to mention exhaustively. In its ultimate analysis, therefore, whether a person is a member of the family of another is a question which must be decided having regard to the surrounding circumstances of a case. " In the present case it will be noticed that Smt. Rajrani has stated in clear terms that Dwarkanath and his family had always been living with her in the house in question and Dwarkanath was looking after her affairs. The defendant Ramanlal in his deposition as D W. 1 has not only not controverted this fact but has supported it and has expressly stated that all the plaintiffs including Dwarkanath are living in the house in dispute along with Dwarkanath's mother, Even the first appellate Court has come to the conclusion that Dwarkanath's family and Rajrani's family have a common mess and residence. I fail to understand what the learned Judge meant by saying that Dwarkanath was not joint with the family in earnings etc. ? In this connection one should not lose sight of the fact that the families of Onkarnath (the husband of plaintiff Rajrani) and Dwarkanath are living together and are joint in food and residence. There is nothing to show that there had been cesser of commensality between the two brothers Onkar Nath and Dwarkanath or that there had been partition between them. The mere fact that Onkarnath acquired the house in question as his exclusive property does not lead to the inference that there had been severance of joint Hindu Family of the two brothers. It is not the defendant's case that Dwarkananth had come to reside with Smt. Rajrani only temporarily or for a specified period. In these circumstances I fail to understand why the need of Smt. Rajrani for the premises in question should not be judged from the point of view of all the members of the family who are joint in food and residence. It was observed by Modi J. in Lalchand vs. Mst. Mohanibai (Supra) that the question whether a person is a member of the family of another is a question which must be decided having regard to the surrounding circumstances of a case and, I may add, with respect, that no hard and fast rule can be laid down in such matters. It is to be judged on the facts and circumstances of each case, whether a person should be included as a member of the family of the landlord for determining the bonafide and reasonable necessity of the landlord and his family. In this view of the matter in disagreement with the Court below I find that while judging the personal necessity of the landlord in the present case, the family of Dwarkanath must also be taken into consideration. The family of the landlord, in the present case, therefore, must he held to be consisting of 14 members as stated by Smt. Rajrani and Dwarkanath and the landlord is in possession of two rooms, one kitchen and one store only which are stated to be grossly inadequate to meet their requirements. It has been stated by Dwarkanath as well as by Smt. Rajrani that her eldest son is in service in Post and Telegraph Department and is shortly to be married. It has been proved that two daughters of Smt. Rajrani are reading in B. A. and Metric respectively and the rest are also shool going children for whom some accommodation is required to provide them a place for study. In this view of the matter I am persuaded to hold that the bonafide and reasonable necessity of the landlord for the premises in question is established.
(3.) SO far as the question of nuisance is concerned, admittedly the defendant has been carrying on dying work in the premises in question for a very long time and therefore, the plaintiffs are estopped from pleading that it amounts to nuisance. So far as the question of electric charges is concerned the learned counsel for the appellants failed to point out that any sum beyond Rs. 9. 45 was due from the defendant. The appellant's counsel also complained that the defendant has not paid rent for a considerable period during the pendency of this litigation though he is not able to point out as to for what period mesne profits during the pendency of the litigation have not been paid. Since the plaintiffs' suit for ejectment is being decreed, the plaintiffs are entitled to get mesne profits up to the date of delivery of possession to them. The plaintiffs will be entitled to recover the same on paying the Court fees in the execution Court at the time of filing execution. It may be added that since I have held plaintiffs appellants No. 1 to 7 only as landlords the decree for arrears of rent, mesne profits as well as ejectment will be deemed to have been passed in favour of the plaintiffs No, 1 to 7 only. In the result, I allow this appeal, set aside the judgment and decree passed by the Courts below and decree the suit for ejectment as well as for arrears of rent and mesne profits as mentioned above. In the circumstances of the case I leave the parties to bear their own costs through out. . ;