J.P.JAIN, J. - (1.) MR . Mandoza's suit for eviction against Mr. J.L. Martin has been dismissed by both the courts below. He has, therefore, come in second appeal.
(2.) THE suit house is situate at Nasirabad Road, Ajmer, popularly known as Gulraj quarter No. 2. This has been on rent with Mr. J.L. Martin since 16th August. 1965 on a monthly rent of Rs. 75/ -. Both the landlord and the tenant hail from Goa and were railway employees at Ajmer. Mr. Mandoza sued Mr. Martinon 28.2.70 for his eviction from the suit house and for the arrears of rent and mesne profits from 1.10.1969 to 28.2.1970. The eviction was sought on the ground of personal necessity as detailed by the plaintiff in para 6 of the plaint. The suit was resisted by the defendant. He admitted the tenancy and the rate of rent. He, however, alleged that he paid rent upto 14.10.1969 and after that rents were remitted by money order but the landlord did not accept the rent, Inter alia be denied the plaintiff's personal necessity. The learned trial judge after trial on the various issues arising out of the pleadings of the parties, dismissed the suit He held that the plaintiff's requirement for the Butt house was not reasonable and bonafide, as in fact the plaintiff needed the house for selling the same. All other issues were decided in favour of the plaintiff. This decree was challenged in appeal before the District Judge by the plaintiff. The learned lower appellate Court did not agree with the learned Munsif that the plaintiff's requirement was for an oblique motive and he wanted to sell the suit house and with a view to fetch a good price he wanted to get the suit premises vacated. But on the assesment of evidence she came to the conclusion that plaintiff has failed to establish that the requirement was genuine and he really needed the house reasonably and bonafide. The appeal was accordingly dismissed by her judgment dated 24.5.1973. This decree is the subject matter of challenge before me. The plaintiff's case as specified in the plaint is that he required the suit premises for the use of his children, his family and himself reasonably and bonafide. In the statement at the trial plaintiff stated that he was transferred from Ajmer to Jaipur in July 1967 and again from Jaipur to Bombay in January, 1969. It has also come in evidence that he was at Ajrrer from 1961 to 1967 before he was transferred to Jaipur. According to his submission two of his sons William Mandoza, and Christopher Mandoza were reading in St. Xavier School, Jaipur as boarders. His daughter Pearl and Bernadette Mandoza were resident students in Sophia School, Ajmer. At that time he had gone to Bombay. He had ten children. Rest of the children were living with him in Bombay. According to him to keep four children in the boarding house was an expensive affair and he, therefore, wanted his wife to stay in Ajmer with the children in the suit house so that all the four children may take their education at Ajmer. The fact that these children in the year 1970 were reading at Jaipur and Ajmer as stated by the plaintiff is not in dispute. This is supported by the two witnesses of the plaintiff, G. Jacob and G. Desouza. That apar even Mr. Martin, the defendant as D.W. 1 admitted that two boys were reading in St. Xavier Jaipur and two girls were taking their education while living in Sophia School, Ajmer. The learned lower appellate Court, however, observed that the plaintiff did not say in his statement that his wife would stay in the suit house and the children would be withdrawn from the hostels to stay with her as to make their schooling less expensive. She took the impression from the statement of the plaintiff that Mrs. Mandoza will stay in Ajmer to look after the children while living in boarding house at Ajmer, and Jaipur. This part of the statement has no doubt been misread. But the learned Judge also took notice of the fact that while the plaintiff was working at Ajmer from the year 1961 or 1967 he kept three of his children at Mt. Abu in the boarding house and two of his children were having their education as boarders in Sophia School This circumstance weighed with the Judge to hold that the plaintiff was interested in educating his children as resident students and not as the dayscholars. It is admitted by the plaintiff that when he shifted to Ajmer from Abu Road, his three daughters were reading at Mr. Abu and according to him Christeen and Gurtu completed their education at Mt. Abu upto 1964 and 1968 respectively to comolete their studies. The third gril also continued to read at Mr. Abu. This position existed when the plaintiff was either at Ajmer or Jaipur. On the day he was examined in the trial Court two grils were reading in Sophia school, at Ajmer and 2 boys were reading as boarders at Jaipur. The rest of the children were with him at Bombay. According to him, he required the suit house for the four children reading in Rajasthan and he wanted his wife to live with them to maks thair education economical and less expensive.
(3.) NOW in this court Mr. Mandoza by his affidavit dated 11 -8 -1975 brought it to the notice of the court that he had retired from Railway Service with effect from 1 -11 -74 and be had vacated the official residence at Bombay on 31 -10 -74. a This fact has not been denied in the counter affidavit of Mr. Martin submitted in this court on 11 -8 -1975 . However it has also come to the notice of the court by the affidavit of Mr. Mandoza and that of Mr. Martin that he plaintiff has purchased a flat at Bombay, in June 1974. His one son and two daughters are in service at Bombay. After his retirement he is living with them. Out of his two daughters, who were reading at Ajmer,one of them has completed her education at Ajmer and the other has been with drawn to contioue her studies at Bombay. His sons who were reading in St. Xavter have left the school at Jaipur. One of them has completed his higher secondary and has now joined a college at Bombay and the other has also started his studies over there. The admitted position thus is that all the children are at Bombay He has his own flat and his one son and two daughters are employed there. None of his children is at the moment reading in Rajasthan. It is bus obvious that his need for the suit house for the purpose of keeping his children to give them education at Ajmer if at all there was any does not subsist. He has stated in the affidavit that five of his children are still reading but none of them is in Rajasthan and they are at Bombay with the plaintiff where he has been residing after retirement in the flat purchased by him. The mere fact that he has all the intention to come back to Ajmer to reside in the suit house is not sufficient to hold, as the matter exists today that he requires the suit house reasonably and bonafide. Something more than the mere assertion is required to establish the genuineness of the need. All the children reading at Bombay must have settled in their new schools. The new session has. already started. It. has been disclosed by the plaintiff in what classes his five school going children are reading at the moment and how does he contemplate to get them admitted in the institutions at Ajmer. The subsequent facts having been placed on record by the plaintiff himself (vide his affidavits dated 11th and 12th of August, 75) cannot be lost sight of. The conditions are changed, the children reading at Ajmer and Jaipur having been withdrawn from their schools either on account of the completion of their studies or for any other reason and their having established at Bombay, leave no ground for for me to take a different view than what has been taken by the first appellate Court. In this view of the matter I have no alternative but to uphold the dismisal of the suit for eviction,;