Dave, J. - (1.) THIS is a second appeal by the defendant in a suit for eviction.
(2.) IT is common ground between the parties that the respondents Heeralal and Kishan Singh are father and son and landlords of the property in dispute and that the appellant is a tenant in a part of the house. The respondents filed a suit lor arrears of rent and eviction of the appellant in the court of the Munsiff, City Jodhpur on 2. 1. 1960. The appellant's eviction was sought on three grounds. IT was averred in the first instance that he was a defaulter. IT was next urged that he had become a nuisance since he had filed certain criminal complaints which were eventually dismissed having been found to be false and lastly that the portion of the property occupied by him was required by the respondents for their own personal use. The appellant traversed the suit and so the trial court framed as many as six issues. After recording the evidence of both the parties, it was found by the trial court that the notice whose validity was questioned by the appellant was valid and that the appellant was a defaulter. The pleas of reasonable and bonafide necessity and of nuisance raised by the respondents were decided against them; but since the appellant was found to be a defaulter, a decree for the arrears of rent and ejectment was passed in plaintiffs' favour on 3. 12. 60. Aggrieved by that decree the defendant went in appeal. The appellate court came to the conclusion that the defendant could not be held to be a defaulter under the law but it disagreed with the findings of the trial court on other issues it was found that the portion of the house occupied by the defendant was in fact needed bonafide by plaintiff No. 2 Kishan Singh that his wife and his mother were not on good terms, that they were constantly quarelling, that their quarrels had also strained the relations of the two plaintiffs and, therefore, Kishan Singh wanted to live separate from his parents with his wife. It was also found by the appellate court that there were a number of criminal cases between the parties and that the defendant had become a nuisance to the plaintiffs and so the decree passed by the trial court was upheld on these grounds. It is contended by the learned counsel for the appellant that the first appellate court has committed an error in reversing the findings of the trial court on issues No. 1 and 3. It is pointed out that the plaintiffs had vaguely mentioned in the plaint that the premises occupied by the defendant were personally needed by them, that it was not shown if the wives of the two plaintiffs were quarelling between themselves and that plaintiff No. 2 wanted to live separate from his father. It is urged that it was not enough for the plaintiffs to show that they desired the disputed premises for themselves; it ought to have been pleaded that the said premises were required by them and their necessity was both bonafide and reasonable. In support of his contention, learned counsel has referred to Rekhabchand Doogar Vs. , J. R. D. ' Cruz (l ). In reply, it is urged by learned counsel for the respondents that in the first place it was not necessary to give in the plaint all the details of the plaintiff's family quarrels and secondly even if it be held that the plaint was not well drafted, such a minor defect could not prove fatal to the case. It is pointed out that this fact was disclosed by the plaintiffs as soon as they were examined in the trial court and both the plaintiffs and their witnesses were cross-examined by the defendant at length on issue No. 1. The defendant was not in the dark as to how the necessity of the plaintiffs had arisen. On the contrary, the defendant had himself produced evidence in rebuttal to prove that the disputed premises were not required by the plaintiffs. Under the circumstances, this plea is not available to the plaintiff. It is also urged that the question whether the premises were needed reasonably and bonafide by the respondents is one of fact and this question should not be allowed to be raised in second appeal. I have given due consideration to the arguments raised by learned counsel of both the parties. I agree with the learned counsel for the respondents to the extent that the question whether the disputed premises were reasonably and bonafide needed by the plaintiffs for their personal use is essentially one of facts and a second appeal thereon would not lie unless it is shown that the question of reasonableness or bonafide was not considered by the court below. It may be pointed out that in Deity Pattabhiramaswamy Vs. S. Hanymayya (2) and Parashnath Thakur Vs. Smt. Mohani Dasi (3) it has been held by their Lordships of the Supreme Court that 'the High Court cannot go into questions of fact, however erroneous the findings of fact recorded by the courts of fact may be.-','i would have, therefore, dismissed the appeal on this very ground, but I have given sufficient hearing to learned counsel for the appellant since it was vehemently urged by him that the bonafide of the necessity and the reasonableness thereof were not proved by the plaintiffs and that the appellate court had also failed to give due consideration to them. I have gone into the plaint and find that the plea of personal and bonafide necessity was raised by the plaintiffs though the details as to how the necessity had arisen were not given therein. This defect was however, removed as soon as the plaintiffs came into the witness box and gave a detailed explanation as to how the necessity had arisen. It was stated by both the plaintiffs in clear terms that their wives were constantly quarrelling and that they could not live together with peace and harmony. It had, therefore, become necessary for plaintiff No. 2 to live separately from plaintiff No. 1 alongwith his wife and children. It appears from their statement that they were cross-examined on this point in detail by the defendant and, therefore, he was left in no doubt as to how the necessity had arisen and whether the said necessity was bonafide and reasonable. The plaintiffs further examined three witnesses on this point and the said witnesses were also cross-examined at length. The defendant then examined evidence in rebuttal on this question and in these circumstances it cannot be said if the defendant's case has been prejudiced in any manner. ' In Nagubai Ammal VS. B. Sharma Rao (4), their Lordships of the Supreme Court after referring to Lord Dunedin's observations in Siddik Mohammad Shah Vs. Mt. Saran (1930 P. C. 57 (1) that no amount of evidence can be looked into upon a plea which was never put forward, obeserved that "the true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But the rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. " It would suffice to say that this principle very fittingly applies to the present case and, therefore, there is little force in the argument raised by the learned counsel for the appellant. It is next contended by learned counsel that the 1st appellate court has observed in its judgment that the premises were needed bonafide by the respondents but it did not consider the question of reasonableness since there is no observation on that aspect in the judgment. Learned counsel is true to the extent that the word 'reasonable' has not been used by the first appellate court in its judgment, but that seems to be only an omission by inadvertence. If the judgment is read as whole, it cannot be said that the question of reasonableness was not present in the mind of the Judge or that he did not give due consideration to it. It is admitted by learned counsel for the appellant himself that respondent No. 2 Kishan Singh has got not only his wife but three children. It is obvious that the premises which were once occupied by the plaintiff No. 1 his wife and plaintiff No. 2 could not be sufficient if plaintiff No. 2 was to live separate along his wife and his children. It hardly needs any argument to show that when the family expands, more accomodation is required by it. As regards the case (Rekhabchand Doogar Vs. , J. R. D. ' Cruz (l) cited by the appellant's learned counsel, it may be pointed out that it is easily distinguishable from the present one. In that case, it was found by the court that the plaintiff in 1919 wanted to let out the premises to a third party and gave defendant a notice to quit, but the defendant paid no attention to it. The plaintiff subsequently wanted rent at the rate of Rs. 150/- per month. The defendant agreed to pay Rs. 110/- but the plaintiff refused to accept and so the defendant deposited the rent with the Rent Controller. In November, 1920; the plaintiff gave defendant another notice to quit on the ground that he required the premises for his own use and occupation and that he had made arrangement for letting out the residential house in which he was then living. It would be clear from these facts that the plaintiff was out to eject the defendant by hook or crook. Earlier he had made an attempt to raise the rent to an unreasonable limit and when he failed in that attempt he offered to let the premises which he was himself occupying, to a third party and he showed his necessity regarding the premises which were in the occupation of the tenant for his own use. It was, in these circumstances. , that it was held that the plaintiff could not be said to require the house bonafide for his own use and occupation. In the present case, there is no allegation to the effect that the plaintiffs wanted the defendant to quit in order to enable them to rent out that portion to another tenant. Sec. 15 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, provides remedy in case the land lord fails to utilise the premises to the use or purpose for which the eviction of a tenant is decreed. I, therefore, see no force in this appeal and it is fit to be dismissed with costs. Learned counsel for the appellant has prayed in the end that his client is in occupation the premises for more than 10 years and he should be allowed three months time to find out another suitable house. Learned counsel for the respondents has no objection if this much facility is given to the appellant. The appeal is, therefore, dismissed with costs, subject to the direction that if the appellant deposits the costs of the suit within one month and also pays the rent regularly, he will be evicted on or after 22. 2. 1963. . ;