Hon'ble GOYAL, J. - (1.) THE defendant-tenant has filed this appeal against the judgment and decree of eviction passed by learned Additional District Judge No. 8, Jaipur City, Jaipur on 21.2.2002. THE parties in this appeal would be referred as arrayed in the plaint.
(2.) THE relevant facts in brief are that the plaintiff- respondent filed a civil suit for eviction on 12.8.1998 with the averments that the suit house No. H3, Chitranjan Marg, C-Scheme, Jaipur was let-out to the defendant in the year 1962 on monthly rent of Rs. 265/-. Present rate of rent is Rs. 2000/- per month. THE plaintiff sought eviction on the grounds of reasonable and bonafide requirement, material alterations, assigning, sub- letting or parting with the possession of some parts of the suit premises giving the details with regard to each of the grounds of eviction. The defendant in his written statement while admitting the tenancy denied all the grounds of eviction with pleas that the plaintiff is in possession of his own accommodation which is sufficient and the plaintiff either wants to let out this house on higher rent or wants to sell it out. On the basis of the pleadings of the parties following issues were framed:- ************** Evidence of both the parties was recorded and vide impugned judgment dated 21.2.2002 issues No. 4 & 6 were decided against the plaintiff and while deciding remaining issues in favour of the plaintiff a decree of eviction against the defendant was passed. The defendant vide this appeal has challenged the findings of the Trial Court on issues No. 1, 2, 3 & 5 while the plaintiff in cross-objections has challenged the findings of the Trial Court on issue No. 4.
(3.) I have heard learned counsel for the parties and have gone through the entire evidence. On the basis of the submissions made before this Court following points arise for consideration:- (i) Whether the decision of the Trial Court with regard to issues No. 1 to 3 relating to reasonable and bonafide requirement, comparative hardship and partial eviction is justified ? (ii) Whether the decision on issue No. 5 on the point of sub-letting, assignment or parting with the possession of the portion of the suit house is justified ? (iii) Whether the decision on issue No. 4 with regard to material alterations is justified ? (iv) Whether the plaintiff was estopped on the basis of the acquiescence and waiver in seeking the eviction ? First Point:-Section 13 (1) (h) and (h) (i) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act) is as under:- Section 13. Eviction of tenants :-(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act unless it is satisfied; (h) that the premises are required reasonably and bonafide by the landlord:- (h) (i) for the use or occupation of himself or his family. According to the averments made in the plaint, the plaintiff along with his wife his son Jaideep, son's wife and two daughters is residing in his ancestral house No. 8, Bhagat Niwas, C-Scheme, Jaipur. A family partition of this ancestral house took place in March, 1995 between the plaintiff, his wife and two sons Jaideep and Jayesh. This family partition was oral. The portion marked with red colour on ground floor came to the plaintiff's share and portions on the first floor marked with green, badami and yellow colour respectively came to the shares of Jaideep, plaintiff's wife and Jayesh as shown in the annexed site-plan Annexure-B. The plaintiff's portion on ground floor consists of three bed rooms, one Pooja room and drawing-cum-dining room. One bed room is occupied by the plaintiff and his wife, the other bed room is in possession of the plaintiff's son Jaideep and his wife and the third bed room is occupied by two grand daughters of the plaintiff. The remaining portions in the shares of the plaintiff's wife and two sons are on rent. The plaintiff has three daughters-all married. Two daughters and one son Jayesh are residing in America. They come with their family members and stay with the plaintiff. Friends of the plaintiff as well as his son Jaideep also come to the plaintiff's house but the plaintiff has no guest room. Kitchen as well as dining-cum-drawing room are common. Both the daughters of Jaideep are learning music and dance and operate T.V. and thus the atmosphere has become noisy. It is also pleaded that the relations between the plaintiff's wife and daughter-in-law are not cordial for last some time and thus the plaintiff and his wife in old age want to live separately in peace. Open heart surgery was also performed on the plaintiff and thus this noisy atmosphere creates tension. It is also pleaded that the plaintiff is a retired Director, Medical and Health Department, Rajasthan and now is carrying on private practice but has no room for that purpose. Therefore, the plaintiff requires the suit house reasonably and bonafide. It is also averred that the defendant has constructed a double storied house on plot of 800 sq. yards purchased in C-Scheme, Jaipur and thus no comparative hardship would be caused to the defendant and the defendant mostly resides at Neem Ka Thana where he has got a big house of his own. ;