D.P. Gupta, J.
1. In this second appeal the only question which arises for consideration is as to whether the plaintiffs-appellants require the suit shop for their reasonable and bonafide personal necessity
2. The trial court decreed the suit for ejectment but the first appellate court dismissed the suit holding that the bonafide necessity of the plaintiff for the suit shop was not proved. During the pendency of this appeal an issue relating to comparative hardship was framed and the same was remitted for trial to the Additional District Judge, whose findings dated April 23, 1977 have been received in this Court along with the record and the evidence led by both the parties on the aforesaid additional issue, relating to comparative hardship. The appellants had also filed an application today by a separate order.
3. The dispute relates to a small triangular shop which is said to be 5' or 6' at the entrance and according to the plaintiff is 22' deep, situated near railway station Jodhpur, on which the defendant-respondent Premchand is carrying on his 'parchuni' business since 1950. The case of the plaintiffs, as spelt out in the plaint, was that the plaintiffs were doing business of tubes, tyres, ball-bearings, axles, vulcanising and patching on a rented shop. The plaintiff Abdul Shakoor has five sons and the shop in dispute and some other shops adjoining thereto are alleged to have fallen to the share of plaintiff Abdul Shakoor as a result of partition between him and his brothers. The plaintiff wanted to expand his business and establish his sons. It is alleged that the shop in dispute was required by the plaintiff for the bonafide use and occupation of himself. The defendant's case was that the plaintiff has several other shops and that the shop in dispute is so small that it is not fit for the business for which the plaintiffs alleged to require it. It is a triangular shop with only three walls and was not of any use to the plaintiffs for the alleged 'kabadi' business in tubes and tyers, vulcanising etc.
4. Although the trial court held the bonafide necessity of the plaintiffs proved, yet on appeal the appellate court exhaustively discussed the evidence on record and came to the conclusion that the alleged necessity of the plaintiff was not bonafide. One of the reasons which led the learned Additional District Judge to come to the aforesaid conclusion was that at the stage of evidence the plaintiff Abdul Shakoor modifided his stand from that initially taken by him in the plaint and stated that after his two other shops adjoining the shop in dispute would be vacated, he would reconstruct the shop by including therein the shop in dispute with a portion of the adjoining shop. It was brought out in evidence that the neighbouring shop in which Mahmoodi. Hotel was earlier located was six times bigger than the shop in dispute. The defendant's case was also not disputed by the plaintiffs that the shop in dispute is only 5' or 6' at the entrance and is only a triangular one with no fourth wall and it could not be used as such for the business for which the plaintiff alleged to require the same. It was in view of the defence taken by the defendant that the plea of reconstruction, which was not pleaded by them in the plaint. The first appellate court held that the indention of the landlord did not appear to be bonafide and that his requirement was neither bonafide nor reasonable. Another factor which was taken into consideration by the first appellate court was that the plaintiff had taken no steps for getting the other shops vacated and he also took no steps for getting a plan prepared and approved by the Municipal Council and further that this small shop could not serve the purpose of the plaintiff.
5. In this appeal learned Counsel for the appellant urged that three out of other four shops or apartments which had fallen to the share of the plaintiff, besides the disputed shop, have already been vacated by their respective tenants. The two shops occupied by Ansari Brothers and Mahmoodi Hotel have been vacated and one other neighbouring apartment has been converted into shops and has been utilised by some of the plaintiff's sons, while another suit is pending in respect of the other shop of which Peeru Lal is the tenant and that the shop in disput was required for the use of Yusuf son of the plaintiff. Learned Counsel contended that the plea of reconstruction was inherent in the plea of personal necessity specified in the second ground which found favour with the first appellate court that the plaintiff did not get the other shops vacated, did not hold good any longer.
6. It may be observed that much more evidence has been led by the plaintiff even on the question of personal necessity during the trial of the additional issue relating to comparative hardship. The following circumstances emerge from the evidence on record:
(1) The plaintiff has got four shops besides the shop in dispute near the railway station, Jodhpur. Out of these four shops, the shop in which Mahmoodi Hotel was earlier lodged is six times bigger than the shop in dispute.
(2) The shop earlier occupied by Ansari Brothers is used by Abdul Khalid one of the sons of the plaintiff for his tyres and tube business.
(3) One shop with some other immoveable property has been gifted by the plaintiff to his elder son, Abdul Salam.
(4) Another suit for ejecting regarding the shop in which Peeru Lal is a tenant is pending and that shop is being got vacated for Mustafa, another son of the plaintiff.
(5) That the plaintiff was carrying on his business in a rented shop and the same business of tyres and tubes, vulcanising, patching and repairing etc. is still being carried on by the plaintiff on that shop and there is no impediment in the plaintiff's continuing to retain the aforesaid rented shop, on which his established business is going on since several years. The plaintiff has himself stated that the rented shop with him is bigger than the shop in dispute.
(6) That there are four other shops in the name of plaintiff's wife, which are said to be about 18' x 10'. They are said to be on rent except one which is used by the plaintiff for storing his stock-in-trade.
(7) That all the five sons of the plaintiff have purchased two plots of land in 'Pali-ki-Haveli' in the city of Jodhpur and submitted plans for construction of 12 shops on such land and the said plan has been approved by the Municipal Council, Jodhpur.
(8) One son of the plaintiff Abdul Rahu is carrying on meat business in the city of Jodhpur and a shop is not required for him.
7. The defendant stated at the time when evidence was recorded in respect of the additional issue that the shops have already been constructed though they arc not in use and their doors have been blocked by the plaintiff by placing stone slabs. Learned Counsel for the appellants strenuously argued that although the site plan was submitted for construction or shops and the same has also been approved by the Municipal Council for constructing the shops, yet residential accommodation has been constructed and four of the plaintiff Abdul Shakoor's sons are residing in the newly constructed apartments.
8. In para No. 4 of the memo of second appeal, filed in this Court, the plaintiff-appellant stated as under:
Two of the plaintiff's sons Abdul Khalid and Mohammad Yusuf have already started Kabadi shop in the shop vacated by Mahmood; Hotel and the plaintiff is in a great necessity of the suit shop so that his other sons also may be employed in the business and the business may be expanded.
9. Thus Yusuf son of plaintiff Abdul Shakoor, for whom the shop in dispute is said to be required, has already started his Kabadi business in the shop vacated by Mahmoodi Hotel, as admitted in the memo of appeal.
10. Thus the over all picture which emerges from a consideration of the aforesaid facts is that the plaintiff is a mighty landlord who is the owner of several shops in his own name, in his wife's name and twelve shops have been newly constructed by his sons all in the city of Jodhpur. Some of the shops in the vicinity of the shop in dispute and belonging to the plaintiff Abdul Shakoor have fallen vacant and they have been occupied and used by the plaintiff for the business of his sons, including Yusuf and Abdul Khadil; he has also gifted one shop and the other immoveable property to his other son Abdul Salam during the pendency of the suit; another son of the plaintiff Abdul. Rahuf is said to be doing goat meat business in the city of Jodhpur while litigation is pending regarding the shop occupied by Peerulal which was being got vacated for another son of the plaintiff, Mustafa. The plaintiff Abdul Shakoor himself is carrying on business in one shop, which though rented, continues to be under his possession. When the evidence was recorded on the additional issue regarding comparative hardship, plaintiff Abdul Shakoor on February 18, 1977 gave out his age as 70 years. Then there is another shop in the name of the plaintiff's wife which is in his occupation and which is used for storing the stock of his trade. The shop in which Mahmoodi Hotel was located earlier and is said to be six times bigger than the disputed shop is used for retrading tyres while the shop formerly occupied by Ansari Brothers is used for storing tyres and tubes and other material. Thus the plaintiff Abdul Shakoor has since the institution of the suit expanded his business manifold and has occupied at least four shops besides the shop already on rent with him. In his statement dated February 18, 1977 plaintiff Abdul Shakoor clearly-stated that he required the suit shop for his son Yusuf. Yusuf also appeared as a witness on the same day and reiterated the need for the suit shop and stated that he had no shop at present and that he was doing some business of tubes and lyres in a 'thela'. The statements of the plaintiff and his son Yusuf run contrary to the arguments made in para No. 4 of their own memo of appeal filed by the plaintiff appellants in this Court, in which it has been specifically stated by the appellants that the shop vacated by Mahmoodi Hotel is used by Abdul Khalid and Yusuf for their tyre and tube business. It is clear that the plaintiff has no sanctiy for oath and is bent on evicting the tenant some how or the other. In these circumstances, it does not stand to reason that the tiny shop in possession of the defendant could be made use of by the plaintiff.
11. It was specifically averred on behalf of the defendant that such a small triangular shop was wholly unsuitable for kind of business carried on by the plaintiff and which he desires to expand further. It is in order to obviate this criticism of his personal necessity that the plaintiff developed at the evidence stage a case that he wanted to reconstruct the shop along with two other shops, earlier occupied by Ansari Brothers and Mahmoodi Hotel. But the Mohmoodi shop, which is six times bigger than the shop in dispute, was vacated as early as in September 1977 and Ansari Brothers' shop was vacated in March 1974, yet no reconstruction has been made by the plaintiff Abdul Shakoor so for. If he wanted to make three big shops, after including this tiny shop, by reconstruction he could have at least reconstructed two shops out of the shops vacated by Answari Br ethers and Mahmoodi Hotel. But the process of reconstruction has not begun as yet and although the plaintiff Abdul Shakoor acquired possession of all these shops during the pendency of the litigation, yet nothing has been done in furtherance of the alleged plea of reconstruction. One more fact has come to light in the evidence is that above the Mahmoodi Hotel shop there are two big halls, one of which was let out to Kesari Singh in the year 1971 and another one was also let out to him in the year 1974. The hall which has been let out to Kesari Singh in the year 1974 could very well have been utilised by the plaintiff's son for storing tubes and tyres and other material, which they are now storing in the shop vacated by Ansari Brothers and thus one shop more would have been available for expanding business, if the plaintiff at all was in need of more shops. As a matter of fact, it appears that the plaintiff and his sons have more shops in their possession than they require for their occupation and that is why the big hall was give on rent to Kesari Singh in the year 1974, the dimensions of which are said to be 30' x 20'. Now when the plaintiff Abdul Shakoor and his sons are in possession of big halls and several shops, which can very well be utilised by his sons for their business, it is beyond comprehesion as to what use the plaintiff will put to the tiny triangular shop, in which the defendant is carrying on his small 'parchuni' business. The only conclusion which can be arrived at, after considering the entire material on the record, is that a greedy landlord appears to be desirous of pushing out a helpless tenant, occupying a small triangular shop which does not appear to be of any such use to the plaintiff landlord and that too without any lawful justification.
12. 1 feel constrained to observe that the plaintiff is out to use any device or subterfuge for the purpose of ousting the defendant from the shop in his occupation. It cannot be understood .that when the plaintiff's sons were in need for more shops for their business and the 'Pali-ki- Haveli' plots were purchased by the five sons of the plaintiff and site-plan for for construction of 12 shops was submitted and got approved from the Municipal Council, then why the shops were not constructed if the version of the plaintiff Abdul Shakoor be accepted?. According to the defendant, the shops have already been constructed but they are not being used as such. No explanation is forthcoming for this conduct on the part of the plaintiff and his sons. It is immaterial whether the plaintiff's sons constructed residential accommodation or constructed shops and have not brought them under use as yet. The crucial matter is that the plots of land were purchased and site plan was submitted and got approved with the intention of getting more accommodation for business premises. If on account of the pendency of the litigation regarding the shop in dispute and the other shop, of which Peeru Lal is said to be a tenant, the plaintiff Abdul Shakoor's sons changed their minds and in derrogation of the sanction obtained for construction of twelve shops, they have proceeded to construct residential accommodation, then it must be held that the alleged need for more shops including the shop in dispute, by the plaintiff and his sons was not at all bonafide.
13. I, therefore, agree with the finding arrived at by t he first appellate court that the plaintiff had failed to prove that he has any bonafide or reasonable requirement for the shop in dispute. The first appellate court has held the issue of comparative hardship against the appellants and I also express my concurrence with the finding of the learned Additional District Judge in respect of this issue, contained in his order dated April 23, 1977.
14. For the reasons mentioned above, the appeal has no force and the same is dismissed with costs in all the courts.