- (1.) THIS second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 21. 9. 1993 whereby learned Additional District Judge, Karauli set- aside the judgment and decree of eviction dated 2. 6. 1988 passed by learned Civil Judge, Karauli.
(2.) THE plaintiff filed a suit for arrears of rent and eviction on 11. 5. 1977 against seven defendants who are legal heirs of the original tenant Sh. Chiranji Lal with the averments that the suit shop was let out to Sh. Chiranji Lal on 1. 1. 1965 at monthly rent of Rs. 5/- by the original landlord Sh. Ramhet. THE suit shop was purchased by the plaintiff vide registered sale deed dated 22. 11. 1975. Eviction was sought on the grounds of second default in payment of rent and reasonable and bonafide requirement of the plaintiff. Vide written statements the defendants having admitted the tenancy denied both the grounds of eviction. On the basis of the pleadings, the Trial Court framed issues. Evidence was recorded. Thereafter, vide judgment dated 2. 6. 1988 the Trial Court held that the defendants have committed second default in payment of rent and the requirement of the plaintiff has been proved to be reasonable and bonafide and the issue of comparative hardship was also decided in his favour and thus decreed the suit for eviction. First appeal preferred by the defendants was allowed vide impugned judgment dated 21. 9. 1993. In first appeal, it was held that second default is not found proved but the findings of the Trial Court on the issue of requirement of the plaintiff were affirmed but on account of subsequent events which were placed on record by the defendants and the evidence of the parties having been recorded on subsequent events, it was held that since the plaintiff's father Sh. Damodar Lal died during the pendency of this appeal in the year 1989 and the shop in possession of the plaintiff's father is now in occupation of the plaintiff himself wherein he is carrying on his business, the plaintiff's requirement stands satisfied. On 23. 11. 1994 following substantial question of law was framed by this Court:- " Whether the learned lower appellate Court has erred in law in setting aside the finding of the Trial Court that the need of the plaintiff was bona fide and reasonable ?"
(3.) WHILE dealing with the issues No. 6 & 7 of reasonable and bonafide requirement and comparative hardship, the Trial Court having considered the evidence concluded that the suit shop is situated in Sarafa Bazar and the same is suitable for that business; that the plaintiff carried on Sarafa business for 10 to 12 years in a rented shop which was got vacated by its landlord in November, 1973; that the plaintiff has no other shop except the suit shop and the suit shop was purchased by him vide registered sale deed Ex. 16 on 22. 11. 1975 to carry on his own business; that after November, 1973 the plaintiff sometimes used to suit at his house and sometimes used to sit with his father to carry on Sarafa business. In view of the above findings, it was held that the plaintiff's requirement of the suit shop is bonafide and reasonable and comparative hardship would also be caused to the plaintiff in comparison to the present occupants of the suit shop as legal heirs of the original tenant Sh. Chiranji Lal. In first appeal, these findings of facts were affirmed. In Mattulal vs. Radhe Lal (1), relied upon by learned Senior Counsel Sh. Mehta it has been held that the finding on an appreciation of evidence that the landlord does not bonafide require the premises in question is a finding of fact and not a finding of mixed law and fact and it cannot be interfered with by the High Court in second appeal. The First Appellate Court having affirmed the finding of reasonable and bonafide requirement of the landlord proceeded further to examine the question of requirement on further subsequents which took place during the pendency of the first appeal. It is not in dispute that the plaintiff's father Sh. Damodar Lal died in the year 1989 during the pendency of the first appeal. An application under Order 41 Rule 27 C. P. C. was moved on behalf of the defendants-appellants with the averments that on account of death of Sh. Damodar Lal now the adjoining shop is available with the plaintiff to carry on his business. It was also averred that the plaintiff was already carrying on his business in this adjoining shop and thus the requirement of the plaintiff exists no more. In reply of this application, it was pleaded by the plaintiff-respondent that after the death of his father his son Shambhu Dayal is doing his business in this adjoining shop. The First Appellate Court vide order dated 5. 5. 1993 proceeded to record the evidence of the parties on the subsequent events. The defendants-appellants examined six witnesses namely Rajesh Kumar Sharma, Ghanshyam (the appellant), Ramji Lal, Triloki, Ram Charan and Fakir Mohammed. Six witnesses were examined on behalf of the plaintiff-respondent namely Smt. Suraj, Girraj Prasad Gupta, Babu Lal Bansal, Kirorilal (the plaintiff), Shimbhu Dayal and Chandra Prakash. ;