TATIA, J. - (1.) THIS second appeal is against the judgment and decree passed by the first appellate court dated 25. 11. 1989 passed in Civil Appeal Decree No. 122/84 by which the first appellate court upheld the eviction decree dated 27. 11. 1984 passed by the court of Civil Judge,sirohi in Civil Original Suit No. 5/82.
(2.) BRIEF facts of the case are that the plaintiffs descendants of original landlord filed the suit for eviction of the defendant Talsa Ram in the trial court on 6. 3. 1976. The ground for eviction submitted by the plaintiffs are that the defendant committed default in payment of rent, the suit premises is required for personal bonafide necessity of the plaintiffs for running a flour-mill in the suit premises as the plaintiffs have no other accommodation in the town Sheoganj for this purpose. The defendant contested the suit. In the trial court issues were framed on 18. 2. 1977 and thereafter on 13. 12. 1982, additional issue was framed with respect to the plea whether the decree for part of the suit premises can satisfy the need of the plaintiffs. The evidence was recorded and thereafter the trial court held that the defendant committed default in payment of rent and also decided issue of personal bonafide necessity in favour of the plaintiffs. The trial court also decided the issue of partial eviction and observed that both the parties have clearly admitted that by eviction of tenant from part of premises will not satisfy the requirement of any party. Consequently, the eviction decree for whole of the rented premises was passed by the trial court on 27. 9. 1984. The tenant preferred regular first appeal to challenge the finding of the trial court recorded on the issue of default as well as the finding recorded on the question of personal bonafide necessity of the plaintiffs for the suit premises. The first appellate court partly allowed the appeal of the defendant- tenant and held that the defendant-tenant has not committed default in payment of rent, however, the first appellate court upheld the finding of the trial court on the question of personal bonafide necessity of the plaintiffs for the suit premises. Hence against the judgment and decree of the first appellate court dated 25. 11. 1989, this second appeal has been preferred. Following substantial questions of law were framed by this Court while admitting this second appeal on 23. 11. 1992:- " 1. Whether in the circumstances the finding of the Lower Court about their bonafide necessity is clearly vitiated on account of non-consideration of the most important facts and evidence ? 2.Whether the non-consideration of the fact whether partial eviction will meet the bonafide requirement of the land lord vitiates the decree ? The learned counsel for the appellants vehemently submitted that the findings of both the courts below on the question of personal bonafide necessity of the plaintiffs for the suit premises is vitiated because of drawing wrong inference from the facts and evidence available on record. It is also submitted that the two courts below misread the evidence and, therefore, wrongly held that the plaintiffs proved their need. The learned counsel for the appellants pointed out that in the plaint, the plaintiff pleaded that the suit premises is required for establishing business by running flour-mill and this requirement was shown for three brothers, namely Mohammed Ali, Mujaffar Ali and Turao Ali, whereas in evidence, it has come from the statement of the plaintiff Mohammed Ali that all the three brothers are having separate and independent businesses. Those businesses of the three plaintiffs, has no connection with the flour-mill business. Not only this but the plaintiff himself admitted that he was not residing in the town Sheoganj and he was residing in Jalore. In view of above, the three brothers are separate and living at least one of the brothers not in the town and there is no reason for their being jointly running the flour-mill business. The learned counsel for the appellant read over the statements of the plaintiff-Mohammed Ali (PW-1) as well as the witnesses produced by the plaintiff to show that from the evidence produced by the plaintiff, need of the plaintiff is not proved. The learned counsel for the appellant vehemently submitted that it is settled law that mere wish of the plaintiff itself is not sufficient. There is no presumption in favour of the plaintiff of his bona fide in case he seeks eviction of tenant on the ground of personal bona fide need and, therefore, the plaintiff is required to prove his need as well as bona fide. It is submitted that the ground taken by the plaintiffs is absolutely illusory, unimaginable and unbelievable. The learned counsel for the appellants also submitted that it is mandatory duty of the court to decide the question of comparative hardship as that duty has been put upon the court by the statutory provisions of law by enacting Section 14 (2) of the Rajasthan Premises (Control of Rent and Eviction ) Act, 1950. Pari materia provision was there in the Act which was in force in the State of Jammu and Kashmir. A case arising under the Act of Jammu and Kashmir in relation to the issue of partial eviction, the matter was taken up to the Hon'ble Apex Court in the case of Rahman Jeo Wangnoo vs. Ram Chand and others (AIR 1978 SC 413 ). Hon'ble the Apex Court clearly laid down that even if there is no pleading and issue even then the court is required to decide the question of partial eviction and to find out whether the need of the plaintiff can be satisfied by passing the decree for part of the premises only. The learned counsel for the appellant also relied upon the judgment of this Court delivered in the case of L. Rs. of Ibrahim and others vs. L. Rs. Of Fakruddin & ors. ( RLW 1997 (2) Raj. 768) and Badrinarayan Chunilal Bhutada vs. Govindram Ramgopal Mundada ( (2003) 2 SCC 320 ). The learned counsel for the appellants further submitted that the landlords failed to plead and prove that they have any experience of running the flour-mill and, therefore, looking to the other facts and circumstances of the case, the ground raised for eviction of the tenant by the plaintiff is nothing but an illusory ground. The learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court respondent delivered in the case of Mattulal vs. Radhe Lal ( AIR 1974 SC 1596) and Heera Lal vs. V. Mandir Shri Thakurji Sangria & anr. (2005 CJ (Rent Control) 283 ). The learned counsel for the respondents submitted that the appellants cannot challenge the finding of the trial court recorded on the issue of partial eviction because of the two reasons which goes to the root of the matter. One is that this is case of the plaintiffs and defendant both in their evidence that the need of the parties cannot be satisfied by part of the premises, therefore, any argument of the appellant-tenant challenging the finding of the trial court on question of partial eviction is contrary to the admission of the defendant himself. Secondly, the defendant-tenant did not challenge the finding of the trial court before the first appellate court and thereby accepted the said finding which is based upon the admission of the defendant. It is also submitted that the question which has not been raised before the lower court, cannot be raised before the appellate court.
(3.) THE learned counsel for the respondent also submitted that even in a case where there was no pleading and there was no issue on the question of partial eviction, even then if the court has recorded finding then it is not necessary and desirable to set aside the finding of the court below which was recorded after affording opportunity of hearing to both the parties in the civil suit. THE learned counsel for the respondents relied upon the judgment of this Court delivered in the case of Bhanwar Lal vs. Tikam Chand & ors. (2000 (4) WLC (Raj.) 408) = (RLW 2001 (1) Raj. 564) and another judgment of this Court delivered in the case of Anandi Lal vs. Smt. Sarju Devi & ors. (2000 (4) WLC (Raj.) 547) = (RLW 2000 (4) Raj. 324 ). The learned counsel for the respondents submitted that in fact the question of personal bonafide necessity of the plaintiff is a pure question of fact and the two courts below have considered all evidence on record and thereafter decide the question of fact in favour of the landlord. Therefore, this Court may not exercise its jurisdiction to interfere the finding of fact recorded by the two courts below recorded concurrently. It is also submitted that the finding of fact is based on evidence and in fact the appellants' contentions are on the basis of misreading of the evidence and bereft of the case because the defendant himself in his written statement, has not taken a plea that the plaintiffs are not residing in the town or they are not doing the business. The defendant also not pleaded that the plaintiff cannot do the business of flour-mill. The defendant also not pleaded that the plaintiff cannot do the business of flour-mill because of the lack of experience or otherwise. The learned counsel for the respondent relied upon the judgment of the Hon'ble Apex Court in the case of Dattatraya Laxman Kamble vs. Abdul Rasul Moulali Kotkune & anr. (All India Rent Control Journal 1999 Vol. 2 page 1) and also relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Raghunath G. Panhale (Dead) by LRs. vs. Chaganlal Sundarji and Co. ( (1999) 8 SCC 1, wherein it has been held that the landlord need not to have actually lost his existing job, nor resigned it, nor reached a level of starvation to justify getting possession of the suit premises in order to establish a business. I considered the submissions of the learned counsel for the parties and perused the record also. ;