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Abdul Hafiz Khan Vs. Jethu Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case Number Civil Second Appeal No. 236/1970
Judge
Reported in1981WLN(UC)401
AppellantAbdul Hafiz Khan
RespondentJethu Ram
Cases ReferredArun Kumar v. Md. Bashir Ahmed
Excerpt:
.....family within the meaning of section 13(1)(h) the act.; the finding of the learned additional civil judge, that as the plaintiff and his wife are only members of the plaintiff's family and so the accommodation available with him is sufficient and as such the defendant would be put to greater hardship than the plaintiff if the decree for ejectment is passed, has been arrived at by giving a narrow meaning to the term 'family' as used in section 13(1)(h) of the act. the finding, thus, stands vitiated on account of an error of law. in these circumstances, i am of the opinion that the plaintiff will be put to greater hardship than the defendant if a decree for ejectment is not passed.;(d) rajasthan premises (control of rent & eviction) act, 1950 - section 13(1)(h) and 14(2)--greater..........appeal under section 100, cpc against the judgment and decree dated may 2,1970 of the additional civil judge, jodhpur by which he set aside the judgment and decree dated november 4, 1967 of the additional munsif no. 1, jodhpur city and decreed the suit for ejectment which was dismissed by the learned additional munsif.2. a few facts may be noticed : the plaintiff-respondeut instituted a suit for ejectment from the house which was rented out to the defendant-appellant on a monthly rent of rs. 34/-. it was stated by the plaintiff that the house in question is reasonably and bonafide required by him for use and occupation for himself and his family. it was also pleaded that the house, where he is living, belongs to his deceased brother chhaganlal and that smt. kamala, the only daughter,.....
Judgment:

S.K. Mal Lodha, J.

1. This is defendant-tenant's second appeal under Section 100, CPC against the judgment and decree dated May 2,1970 of the Additional Civil Judge, Jodhpur by which he set aside the judgment and decree dated November 4, 1967 of the Additional Munsif No. 1, Jodhpur City and decreed the suit for ejectment which was dismissed by the learned Additional Munsif.

2. A few facts may be noticed : The plaintiff-respondeut instituted a suit for ejectment from the house which was rented out to the defendant-appellant on a monthly rent of Rs. 34/-. It was stated by the plaintiff that the house in question is reasonably and bonafide required by him for use and occupation for himself and his family. It was also pleaded that the house, where he is living, belongs to his deceased brother Chhaganlal and that Smt. Kamala, the only daughter, of Chhaganlal has given him a notice to vacate it. A notice under Section 106 of the Transfer of Property Act was given to the defendant terminating his tenancy from the midnight of 6th and 7th May, 1966. The plaintiff has prayed that a decree against the defendant may be granted for his ejectment.

3. The defendant in his written statement, inter alia, denied the reasonable and bonafide requirement of the plaintiff and his family. Issue relating to reasonable and bonafide necessity was framed on August 24, 1966. Parties led evidence. The learned Additional Munsif after appreciating the evidence recorded a finding that the plaintiff has failed to discharge the burden of issue No. 1 relating to reasonable and bonafide necessity. He also held that it has not been proved from the evidence that the plaintiff requires the suit house reasonably and bonafide for use and occupation for himself and his family. In view of the findings recorded by him, he dismissed suit for ejectment. An appeal was filed by the plaintiff and the learned Additional Civil Judge reversed the finding on the question of reasonble and bonafide necessity and decreed the suit for ejectment and also awarded damages for use and occupation at the rate of Rs. 34/- per month from the date of the suit until eviction. The defendant filed this appeal challenging the decree for ejectment on the ground of reasonable and bonafide necessity.

4. During the pendency of the appeal, this Court, by its order dated January 6, 1981, because of the amendment of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) (for short 'the Act'), framed the following Additional issue under Order XLT, Rule 25, CPC:

1(A) Whether having regard to all the circumstances of the case hardship would be caused by passing a decree than by refusting to pass it?

This issue was remitted for trial to the Additional Munsif No. 1, Jodhpur City. The learned Additional Munsif by his order dated April 21, 1981 has decided this issue against the plaintiff and held that the defendant would b6 put to greater hardship than the plaintiff if a decree for ejectment is passed in favour of the plaintiff. The plainliff has filed objections to this finding on May 16, 1981 praying that the aforesaid finding relating to comparative hardship may be set aside.

5. I have heard Mr. J.R. Tatia for the appellant and Mr. H.N. Calla for the respondent and have also considered the material on record.

6. It may be stated that on August 6, 1981, an application under Order XLI, Rule 27, CPC and Section 151 CPC supported by the affidavit of the respondent was filed. Along with that application the original adoption deed dated July 1, 1981, was filed. I propose to dispose of this application first. Para 5 of theapplication is as follows:

5. That the respondent engaged Shri Har Nath Calla for arguing this appeal and he advised the respondent that when all the parties to adoption agree that Kailash already adopted son to respondent and who lives with the respondent since child hood and who after marriage lives with his wife and three children, may obtain the registered adoption deed hence the respondent wrote an adoption deed on 1.7.81 while reiterating the factum of adoption this adoption deed has also been registered on 14.7.81. The original adoption deed along with it a Photo State Copy are being produced for the perusal of this Hon'ble High Court.

It was stated that the adoption deed would streng then the plaintiff's stand that Kailash lives with his wife and three children in the plaintiff's house as an adopted son and that this would enable the Court to properly determine the matter in controversy between the parties. The application is resisted by the defendent on various grounds.

7. Learned Counsel for the appellant invited ray attenention to the statements of PW 1 Jelhu Ram and PW8 Kailash Chandra, having bearing on the question of adoption and submitted that in view of the aforesaid statements, the question of factual adoption cannot be determined. There is force in this contention. From the aforesaid statements it is clear that recitals made in the adoption deed regarding giving and taking ceremony of Kailah Chandra are not correct. In the facts and circumstances of the case and in view of the conclusion to which I have arrived at on the question of ejectment, I do not consider it proper to pass an order for admitting the adoption deed as an additional evidence. The application would, thus, stand disposed of.

8. Learned Counsel for the appellant submitted that finding of the learned Additional Civil Judge on the question of reasonable and bonafide necessity is erroneous. He argued that the learned Additional Civil Judge has reversed the finding on issue No. 1 without properly meeting the reasons given by the learned Munsif, who found that the plaintiff has failed to discharge the burden of issue No. 1 which relates to the reasonable and bonafide necessity. The learned Additional Civil Judge took into consideration all the three grounds mentioned by the plaintiff in para 6 of the plaint. The learned Additional Civil Judge considered the relevant evidence of the plaintiff and the statements made on behalf of the parties before him and came to the conclusion that the plaintiff has been able to establish his reasonable and bonafide requirement in respect of the house in question. This finding of the learned Additional Civil Judge is based on appreciation of the evidence. It was held by their Lordships of the Supreme Court in Mattulal v. Radhe Lal AIR 1974 SC 1856 as under:

The findings of the Additional District Judge on these issues were no doubt inferences from other basic facts, but that did not alter the character of these findings and they remained findings of fact There is, therefore no doubt that the conclusion of the Addition 1 District Judge that the respondent did not bonafide require the Lohia Bazar shop for the purpose of starting business as a dealer in iron and steel materials represented a finding of fact and it could not be interfered with by the High Court in second appeal unless it was shown that in reaching it a mistake of law was committed by the Additional District Judge or it was based on no evidence or was such as no reasonable man could reach.

Nothing has been shown by the learned Counsel that this finding is vitiated on any count what soever. This being a finding of fact and based on appreciation of evidence cannot be interfered with. I affirm the finding of the learned Additional Civil Judged on the question of reasonable and bonafide necessity of the plaintiff.

9. This brings me to the question of comparative hardship. As stated adove, issue No. 1 (A) was remitted to the trial court under Order XLI, Rule 25, CPC The plaintiff amended the plaint and the defendant filed written statement. In support of the aforesaid issue, the plaintiff examined himself again as PW1 and also examined PW5 Fateh Raj, who had already been examined. The statement ofPW8 Kailash Chandra was also recorded on behalf of the plaintiff. In rebuttal, D V 1 Abdul Hafiz Khaa has appeared as a witness. The learned Additional Civil Judge decided this issue against the plaintiff. The reasons stated by the learned Additional Civil Judge are that PW 8 Kailash Chandra is not a member of the plaintiff's family who is maternal grand son of the plaintiff's brother and that PW 8 Kailash Chandra has wife, two daughters and one son. They are five members. The plaintiff and his wife are two other members. Thus, there are 7 members. The learned Additional Civil Judge was of the opinion that the present house is not small for the residence of the plaintiff and his wife and that Kailash Chandra and his wife and children are not the members of his family and, therefore, it cannot be said thit the plaintiff will be put to greater hardship if a decree for ejectment is not passed than the defendant if the decree for ejectment is passed. In other words, he found that the present house is sufficient for the plaintiff and his wife. This finding has been assailed by the learned Counsel for the respondent on the ground that it has wrongly been found that Kailash Chandra is not a member of the family. If Kailash Chandra and his wife and children are taken as members of the plaintiff's family then the present accommodation with the plaintiff if not sufficient and he would be put to greater hardship than the defendant if the decree for ejectment is not passed.

10. The material portion of Section 13(1)(h) of the Act for the present purpose is as under:

13. Eviction of tenants--(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent therefor to the extent allowable by this Act, unless it is satisfied-

(h) that the premises are required reasonably and bonafide by the landlord-

(i) for the use or occupation of himself of his family, or

(ii) for the use or occupation of any person for whose benefit the premises are held, or

(iii) for a public purpose, or

(iv) for philanthropic use, or

In Lal Chand v. Mst. Mohani Bai 1962 RLW 693, Modi. J., has observed as under:

While it may be accepted, therefore, particularly having regard to the social habits and conditions and the modes of living in our own country that that the intention of the Legisture would be best served by putting an extensive meaning on the word 'family' as used in our Rent Control Act, it would still be a question as to how far it would properly be permissible to extend the meaning of this word and where one may have to stop. For, if the intention of the Legislature was that the expression was to include all blood relations or other relations, then there was nothing to prevent the Legislature from saying so. Therefore, the word 'family';, if J may say so with all respect, cannot be used to include all such relations without any qualification whatsoever, and some sort of a limitation will have to be put on it to prevent an utterly promiscuous use being made of it. As I look at the matter, broadly speaking, the word 'family' would include a person's wife or husband and their children, or his or her parents living with them as members of a common house hold; his or her brothers and sisters constituting a joint Hindu Family; a widowed daughter or children, a widowed sister or her children, a deceased brother's wife or her children, all these being dependant on and living with him or der. But again, broadly speaking, it will be hardly permissible to include other relations as falling within this phrase except perhaps under very very exceptional circumstances which for obvious reasons it is impossible to mention exhaustively In its ultimate analysis, therefore, whether a person is a member of the family of another is a question which must be decided having regard to the surrounding circumstances of a case.

In Radha Vallabh v. Damodar Das 1964 RLW 587 it was observed as follows:

There is no definition of 'family' in the Act. Its primary meaning is children, but that may be too narrow an interpretation. Consanguinity does not appear to be pre-requisite of membership of a 'family' and the word appears to have been used in its ordinary popular sense, and not as a technical term. A broad common sense view, taken with due regard to the facts and circumstances of each ease, including the social order, the habit', the customs and the ideas of living of the community, would, therefore, be the most appropriate for the purpose of deciding whether a person is a member of another family or not.

Here I may also notice Govind Das v. Kuldip Singh : AIR1971Delhi151 , wherein it was observed;

The word 'family' has not been defined in the Act and we feel advisdely so. The concept of what constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideals of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.

It has come in the statements of PW1 Jethu Ram that Kailash Chandra who is his brother's maternal grand son has been living within him since childhood, that he got him educated, that he celebrated his marriage and that he takes his meals with him. PW5 Fateh Raj has stated that Kailash Chandra has been living with the plaintiff since his childhood, that he brought him up, that he performed his marriage and that there are 7 members of his family. PW8 Kailash Chandra has supported the plaintiff in this respect. In rebuttal, there is no evidence to controvet thess facts. In these circumstances, the question is whether Kailash Chandra can be said to be a member of the plaintiff's family and that house in question is reasonably and bonafide required by the plaintiff for the use and occupation for himself and his family. As held by Modi, J. and Shinghal. J. the word 'family' should be given a broad and liberal meaning. Having regard to the facts which have come in the aforesaid statements, I am of opinion that P W8 Kailash Chandra is a member of the plaintiff's family within the meaning of Section 13(1)(h) of the Act. It has come in the evidence of PW1 Jethu Ram PW8 Kailash Chandra that the present accommodation available with them is not sufficient for seven members. The learned Additional Civil Judge has also found that the present accommodation is only sufficient for the plaintiff' and his wife. The finding of the learned Additional Civil Judge, that, as the plaintiff and his wife are only members of the plaintiff's family ?and as such the defendant would be put to greater hardship than the plaintiff if the decree for ejectment is passed, has been arrived at by giving a narrow meaning to the term 'family' as used in Section 13(1)(h) of the Act. The finding, thus, stands vitiated on account of an error of law. In these circumstances, I am of the opinion that the plaintiff will be put to greater hardship than the defendant if a decree for ejectment is not passed. I, therefore, reverse the finding in regard to issue No. 1(A) and hold that having regard to all the circumstances of the case, greater hardship will be caused to the plaintiff by refusing to pass a decree for ejectment in his favour than to the defendant if the decree is passed.

11. The net result of the discussion made hereinabove is that the plaintiff has been able to establish his reasonable and bonafide necessity and issue No. 1(A) relating to comparative hardship is decided in his favour. This, however, does not conclude the matter. Second para of Section 14(2) of the Act is as under:

Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.

I have held in Bhawani Sigh v. Achal Singh S.B. Civil Second Appeal No. 122/81, decided on August 26, 1981 that this provision is mandatory.

12. While considering proviso to explanation to Section 11(h) of the J. & K. Houses and Shops Rent Control Act, a some what similar question arose in Rahman v. Ram Chand : [1978]2SCR380 before their Lordships of the Supreme Court. It was observed as under:

The only ground which we consider tenable and which has been urged by the appellant before us turns on the failure of the courts of fact in recording a finding as contemplated in the proviso to the Explanation to Section 11(1)(h) of the Act. Obviously an error has been committed by the High Court in thinking that there is a concurrent finding of fact under the proviso aforesaid. The trial court and the first appellate court have really not considered this question on the merits; indeed evidence itself has not been taken on the score that there has been no specific plea in that behalf. We are satisfied that the proviso aforesaid mandates the court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be directed to be evicted. This aspect, therefore, requires judicial exploration after giving opportunity to both sides to lead evidence in this behalf.

The aforesaid decision of the Supreme Court was noticed in Arun Kumar v. Md. Bashir Ahmed (6), wherein while considering proviso to Section 11(1)(c) of the Bihar Buildings (Lease Rent and Eviction) Control Act (No. III of 1975), the learned Judge accepted the argument pertaining to partial eviction and remanded the case Sub-section (2) of Section 14. of the Act was inserted by the Rajasthan Premises (Control of Rent & Eviction) (Amended) Ordinance, 1975 (No. XXVI of 1975) which has now been replaced by the Rajasthan Act No. XVI of 1976. Section 14 applies to second appeals which were pending at the time of the commencsment of the Ordinance No. XXVI of 1975 and this Court by its order dated January 6, 1981 remitted issue No. 1(A). As the questions whether partial eviction from the house in suit as contemplated in second para of Section 14(2) of the Act be ordered or the entire premises should be directed to be vacated have not been gone into so far, I consider it proper to follow the course adopted in Rahman's case : [1978]2SCR380 .

13. The result is that I allow the appeal and set aside the judgment and decree dated May 2, 1970 of the Additional Civil Judge, Jodhpur and direct him to go into the question as to whether the reasonable requirement of the plaintiff landlord may be substantially satisfied by evicting the defendant tenant from the house in suit as contemplated in the second para of Section 14(2) of the Act. If after taking into consideration the evidence, the court is satisfied that the entire house must be vacated to fulfil the requirement of the plaintiff, a decree for ejectment will be passed. If on the other hand, the court finds that partial eviction will meet the requirement of the plaintiff as contemplated in second para of Section 14(2) of the Act, an appropriate order will be passed on that footing. The learned Additional Civil Judge will take up the case on file pursuant to this order of remand and will determine the question stated above. He will give an opportunity to both the parties to lead evidence on the question and dispose of the appeal in accordance with law within four months from the date of the receipt of the record. There will be no order as to costs.


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