- (1.) HEARD learned counsels for the parties for final disposal at this stage of admission by their consent.
(2.) THE defendant-appellant (tenant), Balvinder Singh S/o late Sardar Surjeet Singh, has filed the present second appeal being aggrieved by the concurrent eviction decree granted by the two courts below in favour of plaintiff- respondent, Himmat Lal, who is now represented by his legal representatives. The learned trial court of Civil Judge (Jr. Division), City South, Udaipur in Civil Suit No.352/1995- Himmat Lal Vs. Balvinder Singh, decreed the suit filed on 11.03.2004 in respect of suit land (open piece of land, measuring 70'x 80') situated at Shivaji Nagar, Udaipur, on the ground of personal and bonafide necessity of plaintiff-landlord for construing house for residence of his two younger sons and starting business for his two sons. The defendant-tenant who is doing the business of selling building materials on the suit land in question. The rent originally fixed was Rs.350/- per month. The first appeal filed by the defendant-appellant being Civil Appeal No.14/2004- Balvinder Singh Vs. Himmat Lal, came to be dismissed by the learned lower appellate court of Additional District Judge, No.2, Udaipur on 26.08.2011 upholding the findings of learned trial court and eviction of tenant was directed. Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi, learned counsel for the defendant-appellant submitted that the learned courts below have erred in granting decree of eviction as the plaintiff-lanlord was having another three storey house in the Udaipur itself, which was quite sufficient for the residential need of his family members. He further submitted that upon refusal to accept the rent, the appellant-defendant deposited the rent under Section 19-A of the Act for the period 01.06.1995 to 31.03.1998. E-Converso, Mr. Sunil Mehta, learned counsel appearing on behalf of respondents-landlord urged that the findings of facts of the learned courts below are not only concurrent but also are based on relevant evidence and, therefore, the same deserve to be upheld. He also urged that the plaintiffs needed the suit land bonaflidely for constructing residential house for his two sons and on some part of the suit land, he wants to start business for his two sons. He further submitted that so far as the alternative accommodation available to the plaintiff-landlord, he submits that the same was falling short and the plaintiff had come to the Court for seeking eviction for his personal bonafide need. It is not for the tenant to dictate the terms in this regard as the landlord is the best judge as to how his business and personal needs have to be satisfied. In support of his contentions, learned counsel for the respondents relied upon a decision of this Court delivered in the case of Denzil Najrath Vs. LR's of Balwant Singh & Ors. reported in 2011 (3) DNJ (Raj.) 1217, in which this Court held in para 6 as under: - "Having heard learned counsels for the parties and having gone through the impugned judgment and evidence recorded by the learned trial court, this Court is satisfied that the findings of the fact about the bonafide need of the landlord recorded by the learned trial court are not perverse in any manner. They are based on cogent reasons and evidence and no interference in the impugned judgment is required to be made in the present first appeal of the defendant-tenant. The owner-plaintiff, Swarn Singh has clearly stated in paras 7 and 8 of his affidavit that the available house with the plaintiff's family was very small of three rooms and for a family of two married brothers and three married sisters and parents of them, the said accommodation was very short of the requirement and, therefore, they needed the suit house for their own residential purposes. Nothing in the cross- examination was even asked from the said deponent about the relationship and number of family members and, therefore, the averments made in the affidavit was sufficient proof unshaken in the cross-examination of the said deponent, namely, Swarn Singh. It is well settled that findings about the bonafide need of the landlord are findings of fact and unless they can be said to be perverse or without any foundation, the same cannot be interfered with by the appellate court; and even though this is first appeal as the trial Court was that of learned Additional District Judge, Sri Karanpur and requirement of substantial question of law may not be there as such as is required for second appeal under Section 100 C.P.C., still this Court is satisfied that decree under appeal deserves no interference and the present appeal filed by the defendant-tenant has no merit." Having heard learned counsels for the parties at length and upon perusal of the reasons given by the courts below, this Court is satisfied that the suit land in question was required for the bonafide need of the landlord-plaintiff as the plantiff wanted to construct a residential house for his two sons and starting business in the some portion of the suit land. This need having been established by the plaintiff and two courts below having returned the findings of fact in his favour, based on the cogent evidence, it cannot be said that such findings are perverse.
(3.) THEREFORE, in the considered opinion of this Court, no substantial question of law arises in the present second appeal and the second appeal of the appellant-defendant is found to be devoid of any force and merit and, the same is accordingly, dismissed with no order as to costs. 9. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit property to the respondents-plaintiffs (landlord) within a period of six months from today and shall pay mesne profit @ Rs.1500/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondents- plaintiffs till the vacant possession is handed over to the plaintiff and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-tenant shall also clear all the arrears of the mesne profit within three months from today, otherwise the same will carry interest @ 9% p.a.. The defendant-tenant, shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the respondents-plaintiffs/landlord within a period of six months from today, besides execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the opposite party and learned courts below forthwith.;