- (1.) THIS appeal is directed against the judgment and decree dated August 20, 1985 passed by the learned Additional District Judge, No. l, Jodhpur in Civil Appeal No. 44 of 1979 affirming the judgment and decree dated July 9, 1979 passed by the Additional Munsif, No. 1, Jodhpur, whereby, the plaintiff's suit for eviction was decreed.
(2.) THE plaintiffs instituted a suit for eviction in respect of the suit-shop on the basis of reasonable bonafide need, which was decreed by the trial court. THE defendants went in appeal and the appeal was heard by the learned Addl. District Judge, No. 1, Jodhpur who, by his judgment dated 7, 1981 dismissed the appeal. THE defendants then preferred Civil Second Appeal No. 118 of 1981 in this Court and this court by judgment dated September 11, 1981 accepted the appeal and set aside the judgment of the first appellate court dated April 7, 1981 and gave directions to the first appellate court. THE operative portion of the judgment reads as under:- "the result is that I accept the appeal and set aside the judgment and decree dated April 7, 1981 of the learned Addl. District Judge, No. 1, Jodhpur and direct him ( first appellate court ) to go into the question as to whether the reasonable requirement of the plaintiffs (Landlord) may be substantially satisfied by evicting the tenant from a part only of the premises as contemplated in the second para of S. 14 (2) of the Act. If, after taking evidence, the court is satisfied that the entire premises must be vacated to fulfil the reasonable requirement of the plaintiffs, the decree for ejectment will stand. If, on the other hand, the court finds as a fact that the partial eviction will meet the ends of justice as contemplated in second para of S. 14 (2) of the Act, an appropriate order will be passed on the same footing. THE learned Addl. District Judge will take up the case on file pursuant to this order of remand and confine himself to the limited question stated above, give opportunity to both the parties to lead evidence on the sole question and dispose of the appeal in accordance with law within four months. In the circumstances of the case, there will be no order as to costs. THE parties are directed to appear in the court of Additional District Judge, No. 1, Jodhpur on October 1, 1981. THEreafter, the learned Additional District Judge, No 1, Jodhpur will fix the date for recording the evidence on the aforesaid limited question". After the remand of the case to the first appellate court, the first appellate court recorded the evidence of the parties. From the side of the plaintiffs, the statements of P. W. 1 Abdul Qayyum, PW. 2 Abdul Rehman, P. W. 3 Abdul Halim, P. W. 4 Mohammed Farooq, P. W. 5 Fazalu Rehman, P. W. 6 Devendraraj and P. W. 7 Abdul Hameed were recorded and from the side of the defendants, the statements of D. W. 1 Anand Prakash, DW 2 Pukh Raj, D. W. 3 Dhan Singh Sankhla. D. W. 4 Babulal Sharma, D. W. 5 another Anand Prakash and D. W. 6 Narsingh were recorded. The learned Additional District Judge, after recording the evidence and hearing the parties, recorded the finding that, the partial eviction is not possible and he framed a point for determination to the effect as to whether without causing hardship to any of the parties, the decree for partial eviction can be passed. This issue was decided in favour of the plaintiffs and against the defendants. Consequently, the decree for eviction was passed and two months' time was given to the defendants to vacate the suit-shop. In these circumstances, the present appeal is filed by the defendants. I have heard Mr. M. C. Bhoot, learned counsel for the appellants and Mr. A. L. Chopra, learned counsel for the respondents. Mr. M. C. Bhoot, learned counsel for the appellants submitted that a substantial question of law is involved in this appeal, inasmuch as, the learned Additional District Judge has nowhere recorded any finding in the light of the direction given by this court. This court, directed the Additional District Judge to decide the question as to whether the reasonable requirements of the plaintiffs shall be substantially satisfied by evicting the tenant from a part only of the premises as contemplated in the second para of Sec. 14 (2) of the Rajasthan Premises (Control of Rent and Eviction), Act, 1950. When there can be substantial satisfaction is a substantial question of law and it can be agitated in second appeal. Mr. Bhoot, learned counsel for the appellants, in this connection, placed reliance on the decision of the Supreme Court in Nasirul Haque vs. Jitendra Nath (1 ). It may be stated that a perusal of the decision itself would show that this decision has no application to the case in hand. Their Lordships of the Supreme Court clearly observed that the Acts of the other States do not embody the concept of "substantial" satisfaction. This decision would, therefore, be of no avail in the context of the facts of the case. That was a case under the Bihar Building (Lease, Rent and Eviction) Control Act, 1977. The question before their Lordships was which regard to the proviso to S. 12 (l) (c) of the Act of 1977. Proviso to S. 12 (l) (c) of the aforesaid Act was as follows:- "12. Eviction of tenants; (l) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947) and, to those of sec. 15, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the court on one or more of the following grounds:- (a ). . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . (c) Where the building is reasonably and in good faith required by the landlord for his own occupation or for occupation of any person for whose benefit the building is held by the landlord; Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall thenceforth constitute the building and the rent so fixed shall be deemed to be fair rent fixed under Sec. 5. " Thus in view of the observations of their Lordships, the decision in Nasirul Haque's case (supra) cannot be pressed into service. Mr. Bhoot, learned counsel for the appellants further contended that the Additional District Judge has not discussed the evidence of the defendants and recorded the finding, without dealing, with the evidence in the manner stated above. That finding, without discussing the evidence is no finding in the eye of law and as such, such a finding is not binding in second appeal. I have been taken through the judgment of the learned Additional District Judge, Mr. Bhoot submitted that the learned Additional District Judge was swayed by considerations, which were extraneous to the point in issue and did not deal with those factors and considerations, which should have been gone into, to determine the question as to whether partial eviction is possible in the facts and circumstances of the case. The learned Additional District Judge ought to have taken into consideration the availability of market for the business, as alleged by the plaintiffs, the nature of business which the plaintiffs want to set up, and investment which the plaintiffs are prepared to make in the alleged business. These various aspects have not been taken into consideration and in the absence thereof, no such finding can be arrived at by the learned Additional District Judge.
(3.) I have considered the above submissions of Mr. Bhoot. It may be mentioned that several factors have been taken into account by the learned Additional District Judge. What investment the plaintiffs are prepared to make, what is the size of the shop and the space available for the two plaintiffs for running the business, how and in what manner the business is to be carried by the two brothers namely; Abdul Rehman and Abdul Halim. All these factors have gone into consideration. It is true that the statement of each individual witness have not been discussed but the relevant factors have been taken into consideration by the learned Additional District Judge. It was not necessary for the learned Additional District Judge to examine as to whether the market for motor parts and auto parts would be available to the plaintiffs, in the premises in question as such a business is run in the city of Jodhpur on Chopasni Road. That may be so, however, the premises in question are situated on the main road of a busy market and not far off from Chopasni Road. Besides that, as far as this aspect is concerned is not to be looked into on the question of partial eviction. It is a point, which is relevant for determination of the question of reasonable bonafide need and comparative hardship. The finding as to reasonable bonafide need and comparative hardship was not challenged before this Court and only partial eviction has been agitated. With regard to space, the statements of Abdual Rehman and Abdul Halim were recorded They have stated that the space is required for motor parts and auto-parts business. Two counters would be installed, one for motor-part business to be run by one brother and the other for auto-part business to be run by another brother. In that situation, it cannot be said that the plaintiffs do not need the total frontage of the shop. The dimensions of the shop, which have come on record is 281/2'x 14 1/2" x 12 1/2' with a varendah of 6 1/2 ft. in front of the shop. Thus, the space required, has been taken note of by the learned Additional District Judge. It is true that the learned Additional District Judge took into consideration some extraneous matters as well, like that the defendants are tenants like continuously since 1941 and had paid only Rs. 40/- per month as rent and during all these years, made profits in lacs. As a matter of fact, these matters should not at all have been averted to. He was only required to consider the question of partial eviction without causing any hardship either to the landlord or the tenant. After determining the question of hardship by partial eviction, if it is found that no hardship could be caused either to the landlord or to the tenant, then, only decree for partial eviction can be passed. Para 2 of Sec. 14 (2) of the Rent Act reads:- "sec. 14:- Restriction on eviction- (1 ). . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only". Here in the instant case, before the learned Additional District Judge, some suggestion was given as to how the shop can be divided but according to the suggestion given by the defendants, the space suggested was in no way sufficient and adequate for the purpose of carrying on motor-parts and auto-parts business and that suggestion was without affording any frontage. Some suggestions have been thrown here before me as well. The details of those suggestions can not be worked out without recording the evidence. It was the duty of the defendants to make those suggestions, so that, those suggestions could be met by the plaintiffs as well. In the absence thereof, this Court cannot enter into the feasibility of those suggestion. What this court is required to see is as to whether the finding of the learned Additional District Judge is in any way vitiated and whether that finding is open to be interfered with or the finding is binding. It may be mentioned that the finding on the question of partial eviction arrived at by the learned Additional District Judge is based on evidence. Unless the finding is vitiated on account of non-consideration of the evidence or on the other grounds on which a finding of fact can be interfered with the finding is a finding of fact which is binding. I find no ground for interference in the finding of fact arrived at by the learned Addl. District Judge, which to my mind is based on relevant considerations. It may be stated that the question of partial eviction is always based on the facts and circumstances of each individual case and no authority can be considered as a precedent or binding authority. I may refer to the decision of the Supreme Court in Satwant Kaur vs. Dhund Singh (2 ). That was also a case of partial eviction from a shop. That shop was already divided by pacca wall and road was available to the back portion of the shop as well. The plaintiff's son was only to start Motor Battery Business. The trial court after considering the size of the shop and nature of business, partially decreed the suit and tenant was directed to vacate the back portion of the shop measuring 14' x 14'. The Supreme Court upheld the decree passed by this Court. Here in the instant case, the plaintiffs want to establish the business of motor parts and Auto parts to be run by two brothers gin two counters. Necessary investment for that business will be made. In my opinion, in the facts and circumstances of the case, the learned Additional District Judge was right and justified in holding that the partial eviction is not possible. As already stated above, the finding arrived at by the learned Additional District Judge is a finding of fact which is not in any way vitiated and such a finding is not liable to be interfered with in second appeal. In the light of the above consideration, I find no force in this appeal, so, it is hereby dismissed with costs. . ;