C.M. Lodha, J.
1. This is a defendant's second appeal arising out of a suit for ejectment from a house situated in Hira Gali, Ajmer.
2. The plaintiffs case is that they purchased the house in question for their own residence. The defendant challenged the alleged purchase of the property by the plaintiffs on the ground that the purchase was bogus, sham and benami He also took certain other pleas such as invalidity of notice of termination of tenancy, misjoinder of parties and causes of action. The trial court did not frame any issue on the question whether the house in question was teasonably and bonafide required by the plaintiffs for their own residence, and proceeded to trial. In found that the defendant had failed to prove that the notice of termination of tenancy was bad and further that the suit did not suffer from any other technical defect pleaded by the defendant. No evidence was examined on behalf of the defendant and consequently the trial court also found that the defendant had failed to substantiate his plea regarding the sale of the property in favour of the plaintiffs being sham, benami and bogus. The plaintiff Kanwar Lal, however, appeared in rebuttal and on the basis of his evidence the trial court decreed the plaintiffs' suit. The appeal filed by the defendant was dismissed by the Additional Civil Judge, Ajmer. Hence this second appeal.
3. learned Counsel for the appellant has argued that no issue had been framed regarding reasonable and bonafide requirement of the premises in question by the plaintiffs. It has also been urged that the defendant made an application for amendment of the isssues by framing an additional issue regarding the necessity of the land-lords, but that application was wrongly rejected by the trial court.
4. It may be pointed out that the allegation regarding bonafide and reasonable requirement by the landlords, the only ground on the basis of which the suit has been decreed, has not been clearly alleged even in the plaint. The only paragraph on which reliance has been placed on behalf of the plaintiffs in this connection is para 2 of the plaint which reads as under;
2. That as the defendant is well aware the entire building the premises under his tenament forms part whereof has been purchased by the plaintiffs for the use and occupation of themselves and their family who are all joint and who at present are residing at Nasirabad for want of suitable, sufficient and convenient accomodation at Ajmer and who all want to reside here at Ajmer with the plaintiffs in the property so purchased by them.
5. The reply to this paragraph in the written statement is as under:
(2) That para 2 is wrong and malafide. The purchase of the property was bogus, sham, benami, with intent to defeat the spirit and letters of law and is against the public policy and could not be recognised by a Court of law. The plaintiffs are called upon to prove strictly each of the allegations made in this para.
6. The courts below have held that since the defendant had not specifically denied the allegation regarding necessity of the premises in question by the plaintiffs for their own residence, the defendant shall be deemed to have impliedly admitted this allegation. The same argument has been repeated before me on behalf of the plaintiff respondents.
7. At this stage, it may be pointed out that it is not on the basis of the replied admission of the defendant that the suit had been decreed, but the courts below have very much pressed into service the statement of the plaintiff Kanwar Lal on this point However, I may mention that the manner in which the bonafide and reasonable requirement by the plaintiffs has been pleaded does little credit to the gentleman who drafted he plaint. Of course the written statement has been dratted no better. The case which has been put before me on behalf of the plaintiffs is that the plaintiffs had undoubtedly occupied a part of the premises in question after purchasing them but that was not sufficient to accommodate all the members of the family, and consequently the permises were required reasonably and bonafide by the plaintiffs for their residence. But this is not what has been pleaded.
8. More over it is to be borne in mind that by virtue of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 courts have been prohibited from passing a decree for ejectment against a tenant unless the land-lord has proved one of the requirements contained in Sub-section (1) (a) to (k) of Section 13 of the Act. Now from the mere allegation contained in para No. 2 of the plaint, it cannot be said that the plaintiffs had specifically pleaded that the (sic) are required reasonably and bonafide by them for the use or occupation of themselves or their family. More over, the defendant in his reply has stand that the allegations in para No. 2 are wrong and the plaintiffs be called upon to prove strictly each of the allegations called in this para. In these circumstances, it was obligatory for the trial court to frame an issue on the question of alleged reasonable and bonafide necessity.
9. Accordingly, I allow this appeal, set aside the judgments and decrees of the courts below and send the case back to the trial court to give opportunity to the parties to adduce evidence on the following additional issue and then decide the case afresh expeditiously:
Whether the premises in question are required reasonably and bonafide by the plaintiffs for their own and their family's occupation?
10. In the circumstances of the case, I make no order as to costs The parties are directed to appear in the court of Additional Munsiff, Aimer (West) on 25.2.1974 Let the record case he returned to the trial court early.