TATIA, J. - (1.) THIS appeal is by the defendant-tenant against the judgment and decree of the first appellate court dated 12. 10. 1987 by which the first appellant court set aside the judgment and decree of the trial Court passed for eviction of the defendant appellant on 27. 3. 1985.
(2.) BRIEF facts of the case are that the plaintiff filed the suit for eviction of the defendant-tenant. According to the plaintiff, the plaintiff purchased one house constructed on plot No. 629 and 630. This house was purchased by the plaintiff from one Roop Chand on 9. 4. 1979 for a consideration of Rs. 7951/ -. The description of the entire house is given in para No. 1. The total house consists of two rooms, one store, one chowk, one varanda and one stair. Out of this, a portion of the house which in fact was separated by the partition wall, was let out to the defendant's father. The rented premises consists of one room, one Pareda and one Kotha and Patiyal. It is alleged that the tenancy was created about 25 years ago and the rent was Rs. 8/- per month. The plaintiff in para No. 2 again gave description of the property which is in possession of the tenant. The plaintiff also submitted sketch map which has been exhibited as Ex. 7 to show the entire purchased property of the plaintiff and the portion let out to the tenant. The plaintiff also produced the sale deed by which he purchased the entire house and that sale deed has been marked as Ex. 1. The ground for eviction set up by the plaintiff was that the defendant committed default in payment of the rent, the suit premises required bona-fidely and reasonably for the personal necessity of the plaintiff and his family. The plaintiff submitted that the plaintiff has two sons, one was of the age of 15 years and the second was of the age of 12 years. The plaintiff is residing in the father's house along with his brother and in that house there are only two rooms (Maliya) and the house is very small, therefore, the plaintiff purchased the house for his residence after paying consideration of Rs. 7951/ -. The plaintiff pleaded that the plaintiff will improve the entire house and he will include the portion which is in possession of the tenant in the rest of the house so that the plaintiff can live in the entire house. The plaintiff also pleaded that the defendant denied the title of the plaintiff, therefore, on this ground also the plaintiff is entitled to decree for eviction against the tenant. The defendant submitted written statement and pleaded that the house no. 929 and 630 are two separate houses. It is partitioned by wait between house No. 629 and 630. The defendant pleaded that the defendant's father took the property in dispute from the predecessor-in-title of the plaintiff with a consideration only that the defendant will keep the house cleaned as well as incur the expenditure of white wash and repairing etc. The defendant, therefore, denied the rent to be Rs. 8/ -. However, the defendant, in his written statement, categorically admitted that for this consideration of keeping the house cleaned and for white wash time to time, the house was taken on rent. The defendant denied the personal bona fide necessity of the plaintiff and further denied that he ever denied the title of the plaintiff. The plaintiff submitted rejoinder to the defendant's written statement. The trial court framed the issues which are, whether the plaintiff is owner of the house, whether the suit property was let out to Navala Ram (father of the defendant) by Roop Chand (predecessor-in-title of the plaintiff) about 25 years ago on monthly rent of Rs. 8/- for running hotel, whether the suit property is required by the plaintiff reasonably and bona-fidely, whether the plaintiff is entitled to decree for eviction of the tenant on the grounds mentioned in para 5 (d) (which is with respect to the denial of title) whether the tenancy was terminated by valid notice and issue about comparative hardship. The trial Court decreed the suit of the plaintiff on both the grounds, i. e. , personal bona-fide necessity of the plaintiff as well as on the ground of denial of title by the tenant. The trial Court's decree was challenged by preferring regular first appeal. The appellate court found that in view of the statutory provisions, it is necessary to determine whether the need of the plaintiff can be satisfied by passing the eviction decree of the tenant from part of the premises. The first appellate court, therefore, by order dated 16. 2. 1987, framed issue No 8 and i. e. that in case decree for eviction of the tenant is passed, then whether the need of the plaintiff can be satisfied by passing the decree of eviction of the tenant from part of the premises only. Both the parties were given opportunities to lead evidence. Therefore, again the evidence was recorded and the trial Court recorded finding on issue No. 8 by order dated 25. 7. 1987 and held that the need of the plaintiff cannot be satisfied by eviction of the tenant from the part of the premises. The trial Court in its order dated 25. 7. 1987 looked into all aspects of the measurements of the house as well as the family members of both the parties and, therefore, decided in favour of the plaintiff.
(3.) THE appellate Court, after hearing both the parties, reversed the trial Court's finding with respect to personal bona- fide necessity of the plaintiff but maintained the decree for eviction of the tenant on the ground of denial of title. THE defendant being aggrieved against the eviction decree on the sole ground of denial of title, preferred this second appeal, whereas the plaintiff respondent submitted cross objection against the reversal of the finding of the trial Court by the first appellate Court on the ground of personal bona-fide necessity of the plaintiff. Following substantial question of law was framed by this Court while admitting this appeal on 15. 12. 1987:- ``whether the allegation of the defendant that he had taken the house from Roop Chand for looking after it (uhius xwius ds fy,) amounts to denial of the landlord's title and the plaintiff is entitled to eject the defendant on that count. '' From the cross-objection, following substantial question of law was framed on 29. 3. 2006:- ``whether the finding of the first appellate court reversing the finding of the trial court on the ground of personal bona-fide necessity of the plaintiff is vitiated because of non-consideration of the plaint allegations as well as the evidence recorded by the trial Court after framing issue by the first appellate court by order dated 16. 2. 1987 and because of non-consideration of the evidence of the defendant himself and because of taking into account the defence which was not set up by the defendant. '' ;