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Mirchumal Vs. Ramchandra and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 15 of 1971
Judge
Reported inAIR1973Raj313; 1973()WLN214
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1); Code of Civil Procedure (CPC) - Sections 100 to 101
AppellantMirchumal
RespondentRamchandra and anr.
Appellant Advocate H.M. Lodha, Adv.
Respondent Advocate M.C. Bhandari and; D.S. Shishodia, Advs.
DispositionAppeal dismissed
Cases ReferredIn Sree Meenakshi Mills Ltd. v. Income
Excerpt:
.....the first one whether the plaintiff has a necessity for the suit premises is primarily a question of fact. likewise, whether it is bonafide is also largely a question of fact, but whether the necessity is reasonable will undoubtedly attract wellknown legal principles for judging objectively whether the necessity is reasonable or otherwise. in the second appeal the court has to give due regards to the findings of the courts of fact regarding the first and the second component, but regarding the third one namely, for judging the reasonableness of the necessity the matter has to be judged in the light of the wall-known principles. - - thereafter, it appears that the relations between the father and the son were not happy and in the year 1965 he was again transferred to..........the above observations the learned district judge went on to say that it was argued before him by learned counsel for the appellant-tenant that this evidence was not sufficient to hold that the plaintiffs had a reasonable and bona fide necessity. the learned judge further observed that under the law it was not the mere wish of the landlord which would be sufficient for holding that he had a reasonable and bona fide necessity and there must be an objective basis from which the court could infer that there is a reasonable and bona fide necessity. the learned judge added that no law can compel the son to live in a room in a joint house with his brothers and father. he reiterated that the house was purchased as back as in the year 1955 and the plaintiff could not construct a house because.....
Judgment:

Kan Singh, J.

1. This is a defendant's second appeal in a suit for ejectment and is directed against the appellate decree of the learned District Judge, Partabgarh ejecting the tenant on the ground of bona fide personal necessity of the landlord.

2. The suit was instituted by two plaintiffs Ramchandra and Baijnath who were the father and son respectively. The subject-matter of the suit was a Nohra, that is, an unbuilt plot with walls. It was let out to the defendant-appellant on a monthly rent of Rs. 15/- on 1-6-1962. The plaintiffs terminated the tenancy saying that plaintiff No. 2 Baijnath wanted to construct a house on the plot for his own residence. Besides the plea of bona fide personal requirement several other averments were made, but as the suit was decreed only on the ground of personal necessity and that ground alone was agitated before the lower appellate Court, it is not necessary to refer to the other grounds in the plaint for ejectment

3. The defendant contested the suit. He denied that the plaintiff had any necessity for the suit Nohra for his residence after constructing a house thereon. He stated that the plaintiff was living with his father in a house which had 11 rooms.

4. Both the parties adduced oral evidence. The learned District Judge after reappraisal of the evidence came to the conclusion that the plaintiff has been successful in establishing the bona fide reasonable necessity for the suit Nohra. The learned Judge observed:--

'It has been fully established on record that this plot of land was purchased by Baijnath in his own name at an auction sale in year 1955. That the rent note was executed in favour of his father because he was a teacher and was out in service from Chittorgarh. Thereafter, it appears that the relations between the father and the son were not happy and in the year 1965 he was again transferred to Chittorgarh. Baijnath now wants to live separate from his father and to construct the house of his own on this plot of land as he has also applied to the Municipality for this purpose and has got permission for the same. He has also secured funds for the same. At present he is living in one room only of his father's house. There are about 11 rooms in his father's house in which two or three married brothers are also living.'

5. After making the above observations the learned District Judge went on to say that it was argued before him by learned counsel for the appellant-tenant that this evidence was not sufficient to hold that the plaintiffs had a reasonable and bona fide necessity. The learned Judge further observed that under the law it was not the mere wish of the landlord which would be sufficient for holding that he had a reasonable and bona fide necessity and there must be an objective basis from which the Court could infer that there is a reasonable and bona fide necessity. The learned Judge added that no law can compel the son to live in a room in a joint house with his brothers and father. He reiterated that the house was purchased as back as in the year 1955 and the plaintiff could not construct a house because of paucity of funds and since the plaintiff had been able to secure funds and was also at Chittor there was no reason why he should not be allowed to construct his own house for a comfortable living. The learned Judge, therefore, concluded that the plaintiff Baijnath's necessity in the circumstances was both reasonable and bona fide.

6. In assailing the judgment and decree of the learned District Judge, learned counsel for the appellant has contended that the Court below has committed a serious error in holding that the plaintiff had been transferred to Chittorgarh as there was no evidence for the same. Learned counsel pointed out that at present the plaintiff-respondent was living at Bhatiawali with his family. Further there was nothing to show that the plaintiff had acquired any funds to be able to build a house and much less was there anything to show as to how much funds he had acquired. Then learned counsel argued that as regards the relations between the father and the son being strained no plea had been taken in the plaint Then learned counsel stressed that the necessary facts for judging the reasonableness of the plaintiffs' necessity for the suit plot have not been stated in the notice that was given by the plaintiff to the defendant terminating the tenancy. Learned counsel submitted that there has been a variation between the pleadings and the evidence. Not only this certain facts had not been brought out in the notice that the plaintiff had given and were also wanting in the plaint. It was pointed out that in the notice, Ex. 4 the plaintiff had not said that he wanted the plot for a residential house nor had he stated therein that the relations between the father and son were strained or even that he had been transferred to Chittor. Then in the plaint the plain-tiff, according to learned counsel, had proceeded further by way of improving the position and averred that he was able to get the funds and that he had been transferred from Padoli to Chittor. When he came to make a statement in Court the plaintiff stated that the relations between the father and the son were strained.

7. I have been taken through the statements of the witnesses. Now, here one is faced with the concurrent findings of the Courts below. It is true, the question whether the landlord has a bona fide reasonable necessity for the suit premises is a mixed question of law and fact, but as in any other mixed question of law and fact there are two aspects; one is regarding the existence of primary facts, and the second one regarding the application of legal principles to such primary facts. In Sree Meenakshi Mills Ltd. v. Income-tax Commr, Madras, AIR 1957 SC 49 their Lordships pointed out how a mixed question of law and fact has to be approached. Their Lordships pointed out that where a finding is given on a question of fact based upon an inference from facts, that is not always a question of law. The proposition that an inference from facts is one of law will be correct in its application to mixed questions of law and fact but not to pure questions of fact. Inferences from facts may themselves be inferences of fact and not of law, and such inferences are not open to review by the Court. Inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or mixed question of law and fact. When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final its decision as to the legal effect of those findings is a question of law.

In the present case, the question involved has three components: (1) whether the plaintiff has a necessity, (2) whether it is bona fide, and (3) whether it is reasonable. The first one whether the plaintiff has a necessity for the suit premises is primarily a question of fact. Likewise, whether it is bona fide is also largely a question of fact, but whether the necessity is reasonable will undoubtedly attract well-known legal principles for judging objectively whether the necessity is reasonable or otherwise. In the second appeal the Court has to give due regard to the findings of the courts of fact regarding the first and the second components, but regarding the third one namely, for judging the reasonableness of the necessity the matter has to be judged in the light of the well-known principles. Once the Court on consideration of all the facts and circumstances of the case comes to the conclusion that the plaintiffs' necessity for the suit premises is a reasonable one then that inference Would, by and large, also lead to the conclusion that the necessity of the plaintiffs was bona fide unless oblique motives like that of enhancement of rent or otherwise of harassing the tenant have been made out.

In the present case, as the learned District Judge has pointed out the respondent Baijnath had purchased the Nohra at an auction sale in the year 1955 and thereafter the plaintiff Baijnath had moved out and the rent note was consequently got written in the name of his father Ramchandra. The learned Judge has also pointed out that Baijnath had applied for grant of permission to construct a house before the Municipal Board who granted the same. He has further observed that the plaintiff was no doubt living in the same house as his father which had 11 rooms in all, but the plaintiff was having only one room for himself, his wife and children. There were the other two or three married brothers of Baijnath who were living in the house. Can it under the circumstances be said that the plaintiff had no necessity for the Suit Nohra? Both the courts have held against the defendant and as I have already observed this being a primary fact and there being no exceptional circumstances warranting interference with such conclusion reached by the courts below, I am inclined to hold that the plaintiff had made out a necessity or need for the suit Nohra.

8. The next question is whether that need or necessity was bona fide. Here again the courts have found against the defendant. The statement of Baijnath had been read over to me. He had not been cross-examined with a view to showing that he had no necessity for the construction of the house nor has it been suggested that the permission that he had obtained from the Municipality for the construction of a house was only a faked affair with a view to creating a ground for the ejectment of the defendant from the suit Nohra. The important aspect of the matter thus is whether the plaintiff has been able to establish that his need for the suit Nohra was a reasonable one.

9. Now, there is no manner of doubt in my mind that if a person has an open land or a plot which is unbuilt and if he really wants to build a house thereon then such a need is a reasonable one. It has not been questioned that the plaintiff was living with his parents and brothers in a joint house and therefore if he wanted to have his own house then the need for such a house cannot be said to be in any manner unreasonable.

10. Now let us see whether there has been the shifting of stand taken by the plaintiff from time to time as contended. In the notice Ex. 4 which was given by one Shri Shyam Sunder, Advocate for the plaintiff it was, inter alia, stated:

^^fd vc esjs i{kdkj dks Lo;a dsfy, edku cukus dh vko';drk gS vkSj oks edku cukuk pkgrs gSa blfy, edku [kkyhdjuk vko';d gks x;k gS A**

I need not advert to other facts mentioned in the notice as they relate to the several other grounds for ejectment taken in the plaint.

11. In the plaint the plaintiff stated in para 6 as follows:--

^^;g fd oknh la[;k 2 es vius Lo;ads fy, jgus ds fy, lqfo/kk tud edku ugh gksus ls vius Lo;a ds fy, jgus dk edkucukus dh xtZ ls ;g edku [kjhnk Fkk A vkSj mls cuokuk pkgrk Fkk A ijUrq uksdjh ijckgj jgus dh otg ls o dqN jde dk izcU/k u gksus ls vc rd dke rkehj ugha dj ldkA**

12. When the plaintiff examined himself as P. W. 1 he stated:

^^;g uksgjk us flfoy dksVZ lsuhykeh esa [kjhnk mldk lfVZfQdsV rk- 1&2&55 dk bZ ,Dl 1 gS A eSus viusiSls ls [kjhnk Fkk A fdjk;k fpV~Vh bZ ,Dl 2 rk- 26&5&62 dh esjs firk dsuke dh gS A ml le; esjh rSukrh ikaMksyh es Fkh A blls esjs firkth us esjh vksjls ;g fdjk;k fpV~Bh fy[kh Fkh A eSus eqnk- ls dgk Fkk fd fdjk;k fpV~Bh esjs ukels fy[k nks D;ksafd uksgjk esjs uke ls gS A fQj eqnk- fdjk;k fpV~Bh esjs uke ijugh fy[kh A eSa bl edku dks jgok'k ds fy;s fQj cukuk pkgrk gwa A eSus bldk uD'kkbZ ,Dl 3 E;q- cksMZ esa is'k fd;k o bldh ^iq'r ij ,- ch- btktr E;q- cksMZ dh gSA**

13. Now, in the cross-examination it has not at all been suggested as already observed that the plaintiff had only obtained the permission from the Municipal Board as a colourable device to oust the tenant. Nor has any question been put about the financial condition of the plaintiff, whether he had the wherewithal to construct a house or not. Learned counsel for the appellant submitted as already noticed, that there have been improvements made by the plaintiffs from time to time regarding his case for personal necessity for building a house. He submitted that in the notice Ex. 4 it had not been mentioned that there was any quarrel between the father and the son or that the plaintiff had been appointed at Chittor. That is true, but the plaintiff had already indicated to the defendant that he wanted the suit Nohra for the construction of a house for residence for himself. Why he was doing so would be a matter of detail. As regards the non-mention of the fact about the plaintiff's transfer to Chittor from Padoli it is sufficient to say that even in his written statement the defendant had admitted that the plaintiff had been in Chittor and there was his house in Chittor and he was filing the suit only with a view to having the rent increased. Therefore, non-mentioning of the fact in the notice that the plaintiff had been posted at Chittor is of no significance whatsoever. Learned counsel then pointed out that though nothing was said in notice Ex. 4 about the plaintiff possessing the funds for the construction of the house, he had said so in the plaint. This again is a matter of detail. Each and every detail is not required to be given in a notice for termination of tenancy. The relations between the father or the son may be good or may be bad, but if the son wants to build his own house in spite of having best of relations with his father the need cannot be said to be an unreasonable one. After all it is not unknown that at some stage in a modern society the sons have to leave and go apart from their parents and, therefore, if one is desirous of having a nest beforehand that cannot be said to be a thing which is unreasonable.

Learned counsel argued that the plaintiff was only a teacher in a village school and he had not shown how he came to have the necessary funds for the construction of a house. Instead of raising this question here the proper opportunity for the defendant-appellant was to put the question to the plaintiff in cross-examination. Apart from this in para 6 of the plaint which has already been quoted, the plaintiff had stated that he had been able to make arrangements for some money and was, therefore, wanting to make a construction over the suit Nohra. In reply, the defendant merely denied this, but had not stated that the plaintiff had no funds or was a man of straw as he could not build a house. Even if the defendant were not to go to that length he could have certainly questioned the plaintiff in cross-examination, as already observed, regarding his financial condition with a view to seeing if he was in a position to build a house. The map that was produced by the plaintiff is no doubt an ambitious plan of construction for a teacher, but it is not necessary that he would be building all the three storeys of the house. To start with he may have a construction on the ground floor only and then think of sky-wards rise according to the improvement in his financial condition, if luck favours him. Be that as it may, there is no reason to think that the plaintiff would not be in a position to build a house.

14. Learned counsel for the appellant also drew attention to the fact that two of the defendant's witnesses had gone against him, but the Courts below should not have put reliance on these witnesses as they were formerly the tenants of the plaintiff and had turned hostile to the defendant-tenant because they were coerced by a warrant of arrest to attend the Court as witnesses. Here we are entering into the realm of appreciation of evidence, but even if we were to do that we do not find that these witnesses were declared hostile by the defendant and cross-examined with a view to seeing why they had given a cold shoulder to the defendant when they were in the witness box.

15. As regards the argument of the learned counsel that the plaintiff was living at Ghatiawali there was nothing in the evidence led at the trial, learned counsel relied on an affidavit filed in this Court in the stay application and submitted that stay had been granted by this Court on that affidavit and, therefore, prima facie the plaintiff had no subsisting need for the premises. The affidavit filed here in the course of stay application cannot be read as evidence in the case.

16. There is thus no force in this appeal which is accordingly hereby dismissed with costs.

17. Two months' time is allowed to the defendant-appellant to vacate the premises.

18. Learned counsel for the appellant orally prayed for leave to appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, but in the facts and circumstances I am not inclined to grant leave which is hereby refused.


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