- (1.) HEARD learned counsels for the parties.
(2.) THE defendant-appellant (tenant), Lila Ram S/o Lichmanji, has filed the present second appeal being aggrieved by the concurrent eviction decree granted by the two courts below in favour of plaintiff-respondents, legal representatives of original plaintiff- Suleman S/o Rustamji. The learned trial court of Munsif Magistrate No.1, Jodhpur in Civil Suit No.9/1982- Suleman Vs. Lila Ram, decreed the suit filed on 03.10.1980 in respect of shop No.24 situated at "Pokaran Haveli", Ghasmandi Road, Jodhpur on the ground of personal and bonafide necessity of plaintiff-landlord for doing business of iron smith in that shop. The defendant-tenant was carrying the business of making caps in the suit shop measuring 6.5' x 10'. The rent originally fixed was Rs.100/- per month. The first appeal filed by the defendant-appellant being Civil Appeal No.10/1990- LR's of Suleman Vs. Lila Ram, came to be dismissed by the learned lower appellate court of Additional District Judge, No.3, Jodhpur on 15.10.1990 upholding the findings of learned trial court and ordered eviction. While admitting the present second appeal, following substantial question of law was framed by a coordinate bench of this Court vide order dated 10.03.1993: "Whether finding of the lower appellate court on Issue No.1 is vitiated because the Court has not considered the admission of the plaintiff Suleman as P.W.1, about the existence of another shop measuring 24' x 10'?" Mr. G.R. Singhvi, learned counsel for the defendant-appellant submitted that the learned courts below did not take into account the admission of the P.W.1, namely, Suleman in his statement recorded by the court below on 18.09.1985 that at the back of the suit shop, there was already a room available measuring 10' x 24', in which he was doing the business of iron smith and, therefore, the findings rendered by the both the courts below are perverse and the eviction decree deserves to be set aside. E-Converso, Mr. S.N. Pungalia, learned counsel appearing on behalf of respondents-landlord urged that the findings of the learned courts below are not only concurrent but also are based on relevant evidence and, therefore, the same deserves to be upheld. He also urged that the plaintiffs needed more space in view of room already available with him, was falling short and the plaintiff had come to the Court for seeking eviction for his personal bonafide need for the said business and 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 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 and the statement of plaintiff- Suleman, this Court is satisfied that there is neither any clear admission on the part of the said witness, Suleman that the room available is sufficient for his business already carried-out in that and in view of increasing number of family members, he needed more space specially to settle his son, namely, Gaffur as they were working together. The suit shop was in front side of the market whereas the room, in which he was carrying on the business in a make shift arrangement, was on the backside. 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 in view of so-called admission of the plaintiff, Suleman.
(3.) THEREFORE, in the considered opinion of this Court, the substantial question of law, framed above, deserves to be answered in negative and against the tenant-appellant and in favour of plaintiffs-respondents; and it is held that findings of the lower appellate court below on Issue No.1 are not vitiated on account of the alleged admission of the plaintiff, Suleman in his statement, which were recorded on 16.09.1985. Consequently, 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. 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.500/- 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. 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 appellant-plaintiff 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. ;