S. C. AGRAWAL, J. - (1.) BOTH these second appeals arising out of suits filed by the respondents, who are common in both the appeals, raise common questions for consideration and, therefore, they are being disposed of by this common judgment.
(2.) S. B. Civil Second Appeal No. 21/1985 arises out of Civil Suit No. 266/1979 filed by the respondents against the appellant, Ram Babu, for his eviction from a shop situate at Tonk. Appellant Ram Babu is in occupation of the said shop as a tenant since 1968 on a monthly rent of Rs. 45/- per month and he is running a Ration shop in the premises. S. B. Civil Second Appeal No. 37/1985 arises out of a Civil Suit No, 225/1979 filed by the respondents against the appellants, Gopi Lal and Gopal, for their eviction from the shop situate in Tonk. The said shop was let out to the appellants on a monthly rent of Rs. 20/-and the appellant are running a Barber shop in the said premises. The shop which are the subject-matter of dispute in these appeals are adjacent to each other. The plaintiff respondents have sought eviction of the appellants in both the cases on two grounds, namely, (1) reasonable and bonafide personal necessity of the plaintiffs for the purpose of Padam Chand (respondent No. 1 in both the appeals) running his clinic in the said shop; and. (ii) material alteration in the suit premises by closing the Verandah in front of the shops. The case of the plaintiff-respondents is that Padam Chand is a qualified medical practitioner, having obtained the M. B. B. S. Degree in the year 1974, and that he sat in the clinic of his cousin brother, Ratan Chand, in Tonk from 1975 to 1978 but since he could not obtain vacant possession of the shops in question he could not establish his own clinic at Tonk and that he has shifted temporarily to Jaipur but he wants to establish his clinic in Tonk. It is also the case of the plaintiff respondents that Padam Chand is at present running an X-Ray Clinic behind shops in question since 1974-75. As regards material alteration in the premises the case of the plaintiff respondents is that the appellants have constructed walls on both the sides in the Verandah in front of the shops and have put a door in front whereby they have closed the Verandah and have included the same in the shops and have thereby made material alteration in the suit premises. The suits were contested by the defendants-appellants who claimed that they had taken the shops on rent from Ratan Chand Dasot and that Ratan Chand Dasot has been receiving the rent from them and, therefore, the plaintiffs are not the landlords and they cannot seek eviction on the ground of their personal need. It is also the case of the appellants that the plaintiffs want to sell the shops after getting them vacated and that the premises are not required for the personal use of Padam Chand. The appellants also denied that they have made any alteration in the suit premises and submitted that whatever alteration has been done was made by Ratan Chand Dasot for the reason that part of the suit premises in the rear was required by him and in lieu of that portion the Verandah was included in the suit premises. On the basis of the pleadings issues were framed which were common in both the suits. Issue No. 1 was as to whether the appellants were in possession of the suit premises as tenants of the plaintiffs. Issue No. 2 was with regard to reasonable and bonafide personal necessity. Issue No. 3 was with regard to comparative hardship and Issue No. 4 was with regard to the material alteration. In suit No. 225/79 the plaintiff-respondents examined four witnesses, namely, Padam Chand P. W. 1, Sujan Mal, P. W. 2, Ratan Chand P. W. 3, and Hussain Khan P. W. 4 and the defendant appellants examined five witnesses, namely, Gopai, D. W. T, Prahlad D. W. 2, Urnar D. W. 3, Shamshuddin D. W. 4, Chittar D. W. 5. In Civil Suit No. 226/79, the plaintiff-respondents examined five witnesses, namely, Padam Chand P. W. 1, Sujan Mal P. W. 2, Roshan Lal P. W. 3, Ratan Chand P. W. 4 and Hussain Khan P. W 5 and the defendent-appellant examined five witnesses, namely, Ram Babu D. W. 1, Prahlad D. W. 2, Umar D. W. 3, Shamshuddin D. W. 4. and Chittar D. W. 5. The evidence of the plaintiff-respondents in both the suits is practically the same except that in Suit No. 226/79 there is an additional witness Roshan Lal P. W. 3, who is attesting witness of the rent-note (Ex. 1) executed by the defendant-appellant Ram Babu in favour of Bahadur Mal Daost, the father of the plaintiff-respon-dants. In Suit No. 225/79, the Munsiff & Judicial Magistrate, Tonk, by his judgment dated 21st September, 1981 found that Padam Chand, in his statement as P. W. 1 has stated that the shop in dispute was given on rent to the defendants, Gopi Lal and Gopal, by his father Bahadur Mal Dasot on a monthly rent of Rs. 20/- and that this fact was also mentioned in the notice (Ex. 1) dated 6th April, 1979 given to the defandents and no reply was given to the said notice and that there was no evidence in rebuttal to the same. The Munsiff has also observed that Shri Manzoor Alam, the learned counsel for the defendents, had admitted that the defendants do not challenge the fact that they are tenants in the suit premises under the plaintiffs. In view of the said evidence as well as the concession made by Shri Manzoor Alam, the learned counsel for the defendants, the Munsiff found Issue No. 1 in favour of the plaintifls and held that the defendants were in possession of the suit premises as tenants of the plaintiffs. As regards reasonable and bonafide personal necessity the Munsiff found that from the evidence of Padam Chand, it is eatablished that he is a qualified medical practitioner and that he would start a clinic by combining both the shops in question and that behind these shops he is also runing an X-Ray clinic. The Munsiff has observed that near the shops in question there is a shop and clinic of Ratan Chand who is son of Sujan Mal, the brother of father of Padam Chand but their business is separate and that Padam Chand has also stated that temporarily he is running a clinic at Jaipur and the reason for that is that he could not get vacant possession of the suit premises. The Munsiff found that the evidence of Padam Chand finds corroboration from the evidence of Sujan Mal P. W. 2 and Ratan Chand P. W. 3. The Munsiff has also observed that Gopal Lal D. W. I, during the course of his statement in cross-examination, has admit-ted that Padam Chand, after passing the M. B. B. S. Examination, was silting in the clinic and had given a notice for vacating the shop and since the shop was not vacated he has ppened the clinic at Jaipur. After taking into consideration the evidence adduced by the parties, the Munsiff found that the plaintiff have succeded in establishing that the suit premises are required reasonably and bona fide for use of Padam Chand and that he is a qualified doctor and would start a clinic in the suit premises and would also run an X-Ray clinic in the suit premises. The Munsiff has also held that no oblique motive has been established and it has not been established that any other alternative accommodation is available with the plaintiffs. As regards the clinic which is being run by Padam Chand at Jaipur, the Munsiff found that by evidence of Padam Chand, it is clear that he is only temporarily running the clinic at Jaipur and the reason is that he could not obtain vacant possession of the suit premises. While dealing with the submissions urged on behalf of the defendants that the Padam Chand can sit-in the clinic of Ratan Chand Dasot at Tonk the the Munsiff has held that Ratan Chand P. W. 3 has stated that the shop of Dasot Brothers and the Dasot Clinic adjacent to it are his shops and be is carrying his independent business there and that he is a registered medical practitioner and that in view of the said statement of Ratan Chand P. W. 3 it could not be said that the said shops are available for use of Padam Chand. The Munsiff, therefore, held that the suit premises are required reasonably and bonafide by the plaintiffs As regards 6omparation hardship, the Munsiff held that the defendants are runing a barber shop in the suit permises which can be carried out at any other place where if the plantiffs are not able to obtain the possession of the suit premises, Padam Chand would not be able to start the clinic and since he is also running an X-Ray clinic behind the suit premises, the plantjiff would suffer greater hardship as compared to the defendants. As regards material alteration also, the Munsiff found that the alteration has been made by defendants and not by Ratan Chand as claimed by the defendant and that the said alteration is material in nature. In view of the said findings the Munsiff decred the suit of the plaintiffs and passed a decree for eviction against the defandants.
(3.) SIMILARLY in Civil Suit No. 226/79, the Munsiff and Judicial Magitrate Tonk, by his judgment dated 21st Sepetember, 1981 found that the defendant Ramt Babu is a tenant under the plantiffs and that the suit premises were let out to him by Bahadur Mal Dasot on the basis of the statement of Padam Chand P. W. 1 and Roshan Lal P. W. 2 who proved the rent-note (Ex. P-1), as well as the contention made by Shri Manzoor Alam, learned counsel for the defendant in that suit, that the defendant was tenant in the suit permises under the plaintiffs. As regards the reasonable and bonafide personal necessity and comparative hardship the Munsiff recorded the same findings as were recorded by him in Civil Suit No. 225/79 and hold that the plaintiffs had succeeded in establishing that the suit premises are required reasonable and bonafide by the plaintiffs and that the plantiffs Would suffer greater hardship as compared to the defendant. The Munsiff also found in favour of the plaintiff on the issue of material alteration and held that the said alteration was not made by Ratan Chand Dasot as claimed by the defendant but was made by the defandant himself and the said alteration was a material alteration. The Munsiff, therefore, passed a decree for eviction, against the defendant in this suit also. The defendants in both the suit filed appeals against the said judgments and decree of the Munsiff and the said appeals were heard and decided by the Distrist Judge, Tonk by a common judgment dated 22nd December, 1984. Before the District Judge it was submitted on behalf of the defendant appellants in both the appeals that the admission made by Shri Manzoor Alam. the learned counsel for the defendants in both the cases before the Trial Court has not been, made under the instruction from his clients and therefore, no reliance should be placed on the said admission and the defendants could not be held to be the tenants of the plaintiffs. The District Judge rejected the said contention of the view that Shri Manzoor Alam has not stated that he did not make the statements as mentioned in the judgment of the Munsiff and that inspite of the fact that the learned counsel for the appellants was asked to file an affidavit of Shri Manzoor Alam that he did not make any such admission, no such affidavit of Shri Manzoor Alam had been filed and in the circumstances the statement in the judgment of the trial Court that Shri Manzoor Alam had conceeded that the appellants were tenants of Bahadur Mal Dasot could not be discarded and in view of the said admission it must be held that the defendant appellants were tenants of Bahadur Mal Dasot and after his death they are the tenants of the plaintiffs. With regard to the reasonable and bonafide personal necessity of the suit premises for use of Padam Chand, the District Judge found that there is on dispute that Padam Chand belongs to Tonk and that there is also no dispute that he is a medical graduate and is competent to open a clinic. It has also been observed by the District Judge that the fact that Padam Chand is a person having a clinic at Jaipur does not deprive him of the choice to shift his clinic to his native place as a doctor and that it is a reasonable and bonafide necessity for a young doctor and moreover the X-Ray clinic of Padam Chand is behind the suit premises and the suit premises are very much apt for opening a clinic by Padam Chand. The District Judge has also observed that the defendants have not proved that Padam Chand has other suitable accommodation at Tonk for opening a clinic and in view of the aforesaid findings, the District Judge found that the plaintiffs have proved their bonafide and reasonble personal necessity. As regards comparative hardship also the District Judge has held that Padam Chand was compelled to leave Tonk and set-up his clinic at Jaipur in order to make his both ends meet, and that the suit premises are required by him for opening a clinic near his already existing X-Ray clinic so that more facilities are there, with regard to material alteration also the District Judge affirmed the finding recored by the trial Court and has held that by covering the open Verandah and making it into a room the defendants have changed the very shape of the shop and that the same was not done with the consent of Ratan Chand as claimed by the defendants. In view of these findings, the District Judge, affirmed the decrees for eviction passed" by the Munsiff in both the suits. Hence these second appeals. ;