Prashant Kumar Agarwal, J. - (1.) - Heard learned counsel for the parties.
(2.) The plaintiff-appellant has preferred this civil second appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 27.7.2000 passed by the Additional District Judge No.9, Jaipur City, Jaipur in Civil Regular Appeal No.15/2000 whereby the learned Appellate Court by allowing the appeal filed by the defendant-respondent Shri Kanhaiya Lal reversed and set aside the judgment and decree dated 23.3.2000 passed by the trial Court i.e. Additional Civil Judge (SD) No.6, Jaipur City, Jaipur in Civil Suit No.22/1998 and as a consequence of that dismissed the suit for eviction filed by the plaintiff-appellant.
(3.) Brief relevant facts for the disposal of this appeal are that landlord-appellant Shri Ganesh Narain filed suit for eviction and for recovery of arrears of rent against the respondent-tenant Shri Kanhaiya Lal with the averment that initially the suit shop bearing No.343 was let out to the respondent by the mother of the appellant and after the death of the mother in a oral partition between him and his brother respondent Shri Poonam Chand the suit shop came in the sole ownership of the appellant and on the asking of the appellant the tenant-respondent executed a rent note in his favour in the year 1976 and also admitted him his sole landlord. It was further averred that the suit shop is bonafide and reasonably required by him for his and his three sons' use and occupation as they have no other premises in which business of 'Ghee' and edible oil can be conducted. It was also averred that the appellant has retired from his service on 1.1.1988 and he is getting Rs.696/- only as a monthly pension whereas his son Rajkumar is doing business of preparing and selling tea in a small space in the stair case situated adjoining to the suit shop which space is in fact a way to go and come from his residential house situated on the roof of the suit shop. It was also submitted that space in which his son is presently conducting his business of preparation and selling tea is not suitable and sufficient and the income from that business is insufficient to support the family members of the appellant. It was also submitted that other sons of the appellant are jobless as they have no accommodation to do any business or profession and the appellant and his sons intend to do 'kirana', 'ghee' and edible oil business in the suit shop. It was further averred that for the reasons stated in the plaint, it is clear that more hardship will be caused to the appellant in comparison to the respondent in case the decree is refused. The tenant-respondent Shri Kanhiya Lal filed written statement and the averments made in the plaint were denied and it was further averred by him that it is incorrect to say that the suit shop was taken by him on rent from the appellant alone on 1.10.1976 and in respect of that a valid rent note dated 19.9.1976 was executed by him. Admitting the fact that the suit shop was initially taken by him on rent from the mother of the appellant, it was further averred that after the death of the mother of both appellant and his brother respondent Shri Poonam Chand became his landlords and it is incorrect to say that partition took place between the two brothers and as a result thereof the suit shop has come into the sole share of the appellant. It was submitted that the plea of partition has been taken in order to get the suit shop vacated from the respondent as the appellant and his brother-respondent Shri Poonam Chand are conducting their business jointly in another shop bearing No.339 jointly owned by them and, therefore, the requirement shown for the suit shop is not bonafide and reasonable. It was further submitted that in the another shop owned by the brothers previously one Shri Kartar Singh was their tenant and a suit for eviction was filed by both the brothers against Shri Kartar Singh and on the basis of compromise arrived at between the them vacant possession of that shop was obtained by both the brothers and thereafter both of them are conducting their business jointly in it. It was also averred that son of appellant Shri Rajkumar is conducting his business of preparation and selling of tea in the premises indicated by the appellant for last about 10 years and the same is sufficient and suitable for the business conducted by Shri Rajkumar and he is earning Rs.300/- per day from this business. It was also averred that two other sons of the appellant are also doing their respective business as mentioned in the written statement and it is incorrect to say that they are jobless and the suit shop is also required for their business. It was further averred that the appellant owns a huge building in Johari Bazar having a entrance from 'Kundighar Bheruji Ka Rasta'. It was also averred that the building owned by the appellant can readily be used for commercial purpose as many other persons are also using the buildings having the same situation for commercial purpose. It was further averred that except the suit shop the respondent owns no other shop for his business which he is conducting for last more than 60 years and if decree for eviction is passed more hardship would be caused to him in comparison to the appellant as he and his 25 family members are dependent on the earnings made from the business conducted in the suit shop. In the additional pleas of the written statement, it was pleaded that the appellant alone is not entitled to file the present suit and it should have been filed by him and his brother-respondent Shri Poonam Chand by the reason that both of them are his landlords. It was prayed by the respondent that the suit filed by the appellant may be dismissed. The brother of the appellant Shri Poonam Chand filed written statement and almost all the averments made in the plaint were admitted by him and it was also stated that the oral partition has been effected between the two brothers and as a result of the same the suit shop has fallen in the share of the appellant whereas the other shop has come in the sole ownership of him in which he alone is conducting his business. On the basis of pleadings of the parties, necessary issues were framed by the trial Court. In support of their respective cases the appellant and tenant-respondent produced oral as well as documentary evidence and the learned trial Court after hearing both the parties decreed the suit filed by the appellant vide judgment and decree dated 23.3.2000. It was found by the Court below that the requirement shown by the appellant for the suit shop is bonafide and reasonable. It was held that the appellant owns no other shop other than the suit shop for his and his sons proposed business and the respondent has failed to prove that two other shops owned by the appellant are situated in the 'Nathmal Ji Ka Chowk'. It was also found by the trial Court that son of the appellant Shri Rajkumar cannot be compelled to do the business of preparation and selling of tea in a small and insufficient and unsuitable space situated near the suit shop whereas two other sons of the appellant are doing only temporary and seasonal business in absence of a shop to do a permanent business. Although, no clear finding was given by the Court in regard to the fact whether after the death of the mother oral partition was effected between the two brothers and the suit shop came into the share of the appellant and the respondent is tenant of appellant alone on the basis of rent note allegedly executed by him, but it was held that if a tenanted premises is owned by more than one landlord all or any of the landlords can file a suit for eviction for the need of all or of one or more of the landlords. Referring the order dated 5.12.1994 passed by the High Court in SB Civil Revision Petition No.359/1994, it was also observed by the trial Court that the tenant-respondent has no legal right to raise an objection regarding partition arrived between the two brothers. The issue of comparative hardship was also decided in favour of the appellant by holding that the appellant has no other premises for his and his sons proposed business whereas all sons of the tenant-respondent are independently well settled and are sufficiently earning for their family's support and he has presently no liability to support his family members. It was further held that the respondent has failed to prove this contention that the appellant owns two shops situated in 'Nathmal Ji Ka Chowk' and the same can be used by him for his and his sons proposed business. On the point of partial eviction from the suit shop, it was observed by the Court that both the parties have denied that by partial eviction their requirement can be satisfied. Dissatisfied with the judgment and decree passed by the trial Court, the tenant-respondent Shri Kanhaiya Lal filed appeal under Section 96 CPC before the First Appellate Court as Regular Civil Appeal No.15/2000 and the same was allowed vide impugned judgment and decree dated 27.7.2000. It was found by the First Appellate Court that from the pleadings and evidence available on record, it cannot be held that partition took place between the two brothers and the suit shop came in the share of the appellant alone and the appellant by concealing material facts with a malafide intention has alleged that as a result of the partition the suit shop came in his share alone so that the suit shop can be vacated from the respondent and this conduct of the appellant makes his requirement doubtful and malafide. It was also held that the appellant alone was not entitled to file the suit for eviction against the respondent. It was further found that it is clear that the other shop No.339 was got vacated by both the brothers and possession of the same was obtained by them jointly, but it has not been made clear by the appellant that the need shown by him has not been satisfied by conducting business in that shop. It was further found by the Appellate Court that the appellant has failed to deny the fact that he owned two other shops situated in 'Nathmal Ji Ka Chowk', which is also a commercial area and, therefore, alternative accommodation is available to him which can be used for the proposed business shown by him. It was also found that an another shop bearing No.346 is also available to the appellant, but the learned trial Court has not given any finding why that shop cannot be used by the appellant for his business. On the question of comparative hardship, it was held that as alternative accommodation is available to the appellant no hardship will be caused to him if the decree for eviction is refused. It was held that it cannot be expected from the respondent that he will produce title deeds in respect of other shops owned by the appellant. As a consequence, the suit filed by the appellant was dismissed. Dissatisfied with the reversing judgment and decree of the First Appellate Court, the landlord-appellant is before this Court by way of this civil second appeal. During the pendency of this appeal original landlord-appellant Shri Ganesh Narain died and in his place his heirs and legal representatives were brought on record as appellants. One of the sons and legal representatives Shri Ashok Kumar also died and in his place his heirs and legal representatives has been made party in the appeal. Similarly, original tenant-respondent Shri Kanhaiya Lal also died during the pendency of this appeal and in his place his son Shri Jugal Kishore has been made party as respondent.;