D.P. Gupta, J.
1. The common question of law which arises for consideration in these four appeals is that if premises are required for use of persons belonging to a particular community of a particular place, can such a use be termed as philanthropic As this question arises in all these four appeals, they shall be disposed of by a common order.
2. Maheshwari Samaj of Jodhpur owns a huge property known as 'Maheshwarion-ki-Bagechi' in front of Jaswant College campus at Jodhpur. At present there are several small apartments in that building, four of which are on rent with the respondents as tenants thereof. In the year 1969, Maheshwari Samaj, Jodhpur filed four suits for eviction and for recovery of arrears of rent against tenant respondents, on the ground that the landlord bonafide and reasonably required the premises in dispute for philanthropic purpose, namely, for converting the entire building into a hostel for students belonging to the Maheshwari community, who come to Jodhpur for receiving education. It was also stated in the plaints that the samaj intended to construct a rest house for persons of Maheshwari community who come to Jodhpur from out side in connection with their litigation or for their business or for the purposes of marriages, after raising donations. Thus, the plaintiffs' case was that the premises were bonafide and reasonably required by the landlord for philanthropic use within the provisions of Section 13(1)(h)(iv) of the Rajasthan Premises (Control of Rent and Eviction Act, 1950 (hereinafter referred to as 'the Act'). The suit filed by the plaintiff against Mohansingh and two suits filed against Shardulsingh were dismissed on February 11, 1971 by the trial court, but the suit filed against Shaitansingh was decreed by that court on December 23, 1971. All the appeals arising out, of four suits were heard together by the Additional Civil, Judge Jodhpur who by his judgment dated March 21, 1973 allowed the appeal in Shaitansingh case and upheld the decree passed by the trial court in the three other appeals and thus all the four suits ere dismissed. It was held by the first appellate court that as the premises were intended to be used for constructing a hostel and a rest room for members of the Maheshwari Samaj only, the need of the plaintiff could not be held to be for 'philanthropic' use. According to the learned Additional civil Judge, the necessary element of philanthropic use is the good of all fellow men or benefit of all humanity and that such an element was conspicuously laking when the plaintiff intended to restrict the use of the property to members of a particular community. It was also held that the Maheshwari samaj was not a person and the premises cannot be said to be required for the use and occupation of any person, for whose benefit he premises were held, within the meaning of Sub-clause (ii) of Clause (h) of Section 13(1) of the Act.
3. The plaintiff Maheshwari samaj has filed these four appeals in this Court and it was urged by the learned Counsel for the appellant in all the four appeals that the first appellate court fell into error in interpreting the term 'philanthropic use', occurring in Sub-clause (iv) of Clause (h) of Section 13(1) of the Act and as the plaintiff desired to convert the entire building known as 'Maheshwari-ki-Bagechi' into a hostel and a rest house for the use of the students and persons belonging to the Maheshwari samaj and that the plaintiff bonafide and reasonably required the premises for philanthropic use.
4. When the appeals came up for hearing before me on February 37, 1981, it was urged that after the amendment of the Act by the introduction of Sub-section (2) of Section 14 in the Act the question of greater hardship is required to be decided even if the finding in respect of the issue relating to personal necessity is reversed by this court. Therefore, by identical orders passed in all these four appeals, this court framed an additional issue on the question of greater hardship and remitted the same to the learned Additional Civil Judge, Jodhpur for recording the evidence and giving a finding, in respect thereof. The learned Additional Civil Judge, Jodhpur by his order dated September 13, 1982 has given a finding against the plaintiff on the question of greater hardship by identical orders in all the four appeals. The finding recorded by the learned Additional Civil Judge on the question of greater hardship has also been challenged by the learned Counsel for the plaintiff appellant in this court.
5. It may be observed that the learned Counsel for the appellant. Maheshwari samaj, in all the four appeals argued that the plaintiff's case was also covered by the provisions of Section 13(1)(h)(ii) of the Act, besides the provisions contained Sub-clause (iv) of Clause (h) of Section 13(1) of the Act, and that the premises were reasonably and bonafide required for the use or occupation of the persons for whose benefit the premises were held, but no such ground was taken by the plaintiff in the plaints or in the trial court and the first appellate court also refused to entertain the aforesaid ground for the reason that it was neither taken in the trial court nor was taken in the memorandum of appeal. As such I am unable to entertain the submission of the learned Counsel for the appellant that the plaintiff's case also fell within the four corners of the provisions 13(1)(h)(ii) of the Act
6. So far the ground contained in Section 13(1)(h)(iv) is concerned, the plaintiff has to establish that the premises were required reasonably and bonafide by the landlord for a philanthropic use. Now, the plaintiff's case in this respect is that the budding known as 'Maheshwarion-ki-Bagechi' belongs to the plaintiff Maheshwari Samaj and the premises on rent with the defendants form only a small portion of the aforesaid building. According to the plaintiff, the entire building is intended by the Maheshwari samaj to be utilised for the purpose of being used as a hostel for the students belonging to the Maheshwari community, who come to Jodhpur for studying in various educational institutions. The plaintiffs case further is that after raising donations, the plaintiff intends to make constructions on the first floor for being used as a rest house by the members of the Maheshwari community who come from out side to Jodhpur for the purpose of attending to their litigation in various courts at Jodhpur and also in connection with their business activities and for purposes of marriage. The learned Additional Civil Judge, as mentioned earlier was of the view that the necessary element of good of all fellow being is conspicuously lacking in the present case. According to the first appellate court the expression 'philanthropic' could not be construed in a narrow sense so as to limit the use of the building to the member of a particular community and that ths use of the building as a hostel and a rest house, which would bi available only to the members of the Maheshwari samaj and none also, could not be classified as 'philanthropic use.'
7. As the expression 'philanthropic use has not been defined in the Act, we will have to fall back upon the dictionary meaning of the expressions Webster's Third New International Dictionary defines the term 'philanthropic' as goodwill toward one's fellowmen specially as expressed through active Efforts to promote human welfare; an act or instance of deliberativa generosity; an institution or agency supported by such contributions made in the spirit of humanitarianism.
8. The encyclopedia on Religion and Ethics by James Hastings (Vol. 9) exhaustively deals with the expression philanthropy' and defines it as under:
the disposition or active effort to promote the happiness and well-being of one's fellow-men. It is closely akin to charity, and may be regarded as charity grown up; i.e. the impulse to help the needy which may be put as casual and superficial emotion, develops in some minds into a settled disposition and a steady life effort. The typical philanthropist is a prosperous person who gives up a large share of his life to the work of improving the Jot of his fellow-creatures. While charity concerns itself in the main with the present needs of individuals philanthropy looks further, to the further as well as to the present, and seeks to elevate human life on a larger scale. Further, philanthropy is usually the product of religious faith, and it is therefore, effected by the kind of religion that prevails in a community.
Philanthropy, then, is the outcome of the charitable impulse, when disciplined by reflective thought, in a strongly individualized society: but philanthropy, in its turn, under the criticism of reason, tends to emerge itself in something larger still. The efforts to cope with the socials evils put forth by individuals, either alone or in voluntary association, are often found to fail; and it is seen that to be effective they must be undertaken by the community.
9. The question as to what is the meanin of the word 'philanthropic' came up for consideration in Macduff v. Macduff (1896) 2 Chancery Division 451, while interpreting a bequest of money for charitable or philanthropic purposes, Lindley, L.J. observed as under:
Then what is the meaning of the word 'philanthropic'? He means by that something distinguished from charitable in the ordinary sense, but I cannot put any definite meaning on the word. AH I can say is that a philanthropic propose must be a purpose which indicates goodwill to mankind in general.... Such purposes would be philanthropic in the ordinary acceptation of the word-that is to say, in the wide loose sense of indicating goodwill towards mankind or a great portion of them.
Rigby, L.J. in the aforesaid case observed as under:
It is a gift to charitable or philanthropic purposes I am bound to say that f do not think it is very different from gift from philanthropic purpose. There may be an argument that, 'philanthropic' being joined with 'charitable'; the philanthropic purposes must also be charitable.
10. In Attorney General v. National Provincial and Union Bank of England and Ors. 1924 AC 662 the expression 'charitable' came up for consideration before the House of Lords. Viscount Haldane observed that charitable is one which is beneficial to the community or for public welfare.
11. In Ahmedabad Rana Coste Association v. Commissioner of Income-tax, Gujarat : 82ITR704(SC) the question came up for consideration as to whether benefit it would be enough if a well defined section of the public is to be benefited Their lordships of the Supreme Court observed as under in the aforesaid case:
It is well settled by now and the High court also has rightly taken that view that an object beneficial to a section of the public is an object of general public utility. To serve a charitable purpose it is not necessary that the object should be to benefit the whole of mankind or all persons in a particular country or State. It is sufficient it the intention to benefit a section of the public as distinguished from a specified individual is present.
In the case before their Lordships of the Supreme Court a donation was given to an institution of the Rana community of the city of Ahmedabad, for purpose of doing acts to improve education in the community, to give medical help to the community etc. The question arose as to whether the object was charitable as the beneficiaries were not the public at large but a small class of Rana Community that too of Ahmedabad. It was observed by their lordship of the Supreme Court that community sought to be benefited was sufficiently defined and identifiable by some common quality of a public or impersonal nature. It was held that members of the Rana caste residing at Ahmedabad was a common quality uniting the potential beneficiaries into that class.
12. In Commissioner of Income Tax, Madras v. Andhra Chamber of Commerce, Madras : 55ITR722(SC) it was held that an Association whose income was applied solely for the promotion and protection of trade, commerce and industries in Andhra was an institution having on object of general public utility Their lordships of the Supreme Court observed as under in the aforesaid case:
Even if the object or purpose may not be regarded as charitable in its popular signification as not tending to give relief to the poor or for advancement of education or medical relief, it would still be included in the expression 'charitable purpose', if it advances an object of general public utility. 'The expression 'object of general public utility', how ever is not restricted to objects beneficial to the whole mankind. An object beneficial to section of the public is an object of general public utility. To serve a charitable purpose, it is not necessary that the object should bi to benefit the whole of mankind or even all persons living in a particular country or province. It is sufficient if the intention to benefit a section of the public as distinguished from specified individuals. Observations to the contrary made by Beaumont C.J. in Commissioner of Income-tax Bombay v. Grain Merchants Association of Bombay : 6ITR427(Bom) that 'an object of general public utility means of an object of public utility which is available to the general public as distinct from any section of the public, 'and that objects of an association 'to benefit works of public utility confine to a section of the public i.e. those interested in commerce', are not objects of general public utility, do not correctly interpret the expression 'objects of general public utility'. The section of the community sought to be benefited must undoubtedly be sufficiently defined and identifiable by some common quality of a public or impersonal nature: where there is no common quality uniting the potential beneficiaries into a class, it may not be regarded as valid.
13. The same view was taken in Commissioner of Income-tax Gujarat v. Ahmedabad Rana Caste Association : 88ITR354(Guj) wherein a trust was created with the object of doing acts, to promote unity and brotherhood amongst the members of the Rana Community of Ahmedabad. It was held by the Gujarat High Court that a purpose calculated to promote utility and brotherhood amongst members of a community was purpose beneficial to the community and was, therefore, charitable. Bhagwati, C.J. as he then was, observed as under in the aforesaid case:
Now, admittedly, none, of these purposes can be said to be for relief of the poor, education or medical relief and, therefore, the only question would be whether they are purposes covered by the expression 'advancement of any other object of general public utility' which means the body of people at large including any class of the public; 'utility' means usefulness. Therefore, the advancement of any object of benefit to the public or a section of the public, as distinguished from an individual or group of individuals, would be a charitable purpose. Applying this test, can it be said that the purposes set out in the Sub-clauses (4) and (5) of Clause 3 and Sub-clause (4) of Clause 8 are charitable purposes? Are they purposes which are useful and beneficial to the Rana Community or which promote the welfare of the Rana community? If they are, they would be object of general public utility.
14. Thus, it is well settled that acts done with the object of providing benefits to a section of the society or to a well defined class of persons would also come within 'charitable' or 'philanthropic' purpose, even if the benefit of such acts has not been made available to the entire society or to mankind in general. The promotion of religious, social and physical well-being of members belonging to a particular community would thus be an object of general public utility or a charitable or philanthropic purpose. It is axiomatic to say that a complete, integrated development of every member of the community may be beneficial to the community at large. The community is after all n thing but a conglomeration of the members there of and the purpose which is calculated to bring about development or to benefit members of a particular community, would necessarily be a philanthropic purpose.
15. The welfare of a particular community or class of persons, either on the basis of geographical, religious social or economic considerations, would also constitute the well being of all humanity as what is beneficial to a class or community or section of the people is necessarily beneficial to the human society. It is not always necessary that a 'philanthropic use' must be such as may be beneficial to the humanity at large but it could be limited to the welfare or benefit of fellow human beings belonging to a well defined class or community, who are joined together by common bonds of religion, race social or economic unity. After all the purpose which is beneficial to a section of the public, is in the large context beneficial to the human society, but an act solely for the benefit of a few individuals or group of persons would not fall within the preview of charitable or philanthropic use. I am, therefore, unable to agree with the learned Additional Civil Judge that if the use of the hostel, which is sought to be constructed by the Maheshwari Samaj of Jodhpur, is restricted to the members of the Maheshwari community only, then it would cease to be 'philanthropic'. Merely because such hostel would not be meant for the common good of all men kind or all fellow beings but would cater to the well being and development of the residents of a particular locality or members belonging to a particular religion, faith or community, it would not cease to be use for charitable or philanthropic purpose. The distinction, which must be drawn between a charitable and philanthropic purpose on the one hand and those which do not fall within the ambit of such purposes is the advancement of any object beneficial to the people at large or to any class or section of the public as distinguished from an individual or a group of individuals. If a particular community, which is undoubtedly a section if the public, is to be benefited by the use of the building, then it must be held to be charitable or philanthropic purpose. Of course, what may not be charitable may yet be philanthropic, in as much as the advancement of an object beneficial to the affluent section of the society may not be charitable yet it may be 'philanthropic', when the object is to benefit the community or section of the community, but not to individuals or group of individuals.
16. Mr. N.M. Singhvi learned Counsel for the respondents argued that there was a finding of fact recorded by the first appellate court which was binding in second appeal in respect of the question of greater hardship and as such even if it be held that use of the building as a hostel for students of Maheshwari community was a philanthropic purpose within the meaning of Section 13(1)(h)(iv) of the Act, yet if greater hardship would be caused to the tenants, as held by the learned Additional Civil Judge, then a decree for ejectment could not be passed. Learned Counsel relied upon the decision of a full Bench of this Court in Chattarlal v. Ram Das ILR 1979 Raj. 3 in support of his above mentioned contention. It was held by this Court in that case that the finding of fact recorded by the first appellate court, when an issue is remitted to it under Order 41 Rule 25 CPC in a second appeal, would not be open to attack except on the grounds stated in Section 100 CPC. Thus, the finding on the question of comparative hardship either to the landlord or the tenant, recorded by the first appellate court after the issue was remitted to the court is undoubtedly a finding of fact, which cannot be challenged in second appeal except on the grounds contained in Section 100 CPC.
17. However. learned Counsel for the appellant pointed out that the finding recorded by the first appellate court in its order dated September 13, 1982, while deciding the issue relating to comparative hardship was vitiated on account of misreading of evidence and is perverse on its very face. The learned Additional Civil Judge observed that there was other property belonging to Maheshwari Samaj situated near Harnath Ka Bera and Umaid Hospital, Jodhpur, in which arrangements have been made for hostel and also for lodging of persons belonging to the Maheshwari community who come from outside. I have read the evidence recorded by the learned Additional Civil Judge in respect of the additional issue remitted to him, but none of the witnesses have stated that any hostel accommodation was provided in the property of the Maheshwari samaj situated at Harnath ka Bira or near Umaid Hospital What has been stated by the witnesses produced by the tenants is that the property of Maheshwari Samaj known as Harnath-ka-Bera and situated near Umaid Hospital is being utilised by persons who look after the patients admitted in the hospital. It was also stated by them that some times that accommodation is also made available for the purpose of marriage. But there is not an iota of evidence to show that the said accommodation is used as a hostel for students belonging to the community or for the temporary stay of persons belonging to the Maheshwari community who come to Jodhpur from out-side for the purpose of attending to their litigation in the courts at Jodhpur or for business purposes. It was argued by Mr. Singhvi that the accommodation at Harnath-ka-bera could also be used for the purposes of a hostel and as temporary accommodation of the members of the community coming from outside for attending to their court work or for business, as was held by the learned Additional Civil Judge. I am unable to agree with this contention of the learned Counsel in as much as a hostel for students cannot be located at the very same place where either the patients or their attendants or caretakers are allowed to stay. It would undoubtedly be better if the hostel may be situated near about the area where in the educational institutions are situated and at a distance from the place where the caretakers or attendants of patients are accommodated. The learned Additional Civil Judge has also observed that only Jaswant college is situated near the property in dispute. Learned Counsel for the respondents was unable to support this finding inasmuch as it is common knowledge that Jaswant College area constitutes the old campus of the Jodhpur University and is situated near Ratanada, where the premises in dispute are situated, and that the teaching of the Jodhpur University upto the graduation level in the various faculties, of Arts, Commerce, Humanities as well as Law takes place normally in the old campus and only the Science Faculty has been shifted to the new campus of the Jodhpur University.
18. Learned Additional Civil Judge also expressed the view that conversion of the existing building into a hostel for students would be equally expensive as the construction of a new building and as there was lot of open space available with the plaintiff for construction of a new hostel building, the plaintiff should undertake to construct a new building for hostel rather than convert the existing building for the aforesaid purpose. It may be observed that this finding recorded by the learned Additional Civil Judge is based on no material whatsoever. The learned lower court has observed that he has seen the site plan about the existing condition of the building and the proposed re-construction and every room will have to be dismantled in order to renovate the existing building and make it useful as a hostel for students. In the first place merely by looking at the site plan the learned lower court could not have come to what amount of expenditure would have to be incurred in converting the existing building into a hostel for students and what expenses would have to be incurred in the construction of a new hostel building all together. There is no evidence on record to show that making requisite alterations for connecting the existing building for use as a hostel would be equally expensive as the construction of a new building for a hostel for students. According to the plaintiff's witnesses, Rs. 25,000/- to 30,000/- would be incurred in making the necessary alterations in the existing building for conversion thereof in a students' hostel; but the construction of a new budding would require expenditure to the tune of Rs 3 to 4 lacs. The finding arrived at by the first appellate court in this respect is contrary to the evidence brought on the record. Moreover 1 have also looked into site plans of the existing building and the proposed reconstruction produced by the plaintiff and it is apparent from a perusal thereof that the outer construction is proposed to be maintained as it is, while modification or alteration is proposed to be made in the internal walls for converting the existing structure suitable for use as a hostel for students. Thus the first appellate court was in error in holding that the same amount of expenditure would be incurred in making the requisite alterations, as would be spent in making a new construction. The finding recorded by the first appellate court on the question of greater hardship is therefore, vitiated on account of material misreading of evidence on record and finding is apparently based on no evidence so far as She question of expenditure to be incurred on making new construction is concerned.
19. I have carefully read the evidence of the witnesses produced on behalf of both the parties in respect of the remitted issue and there can be no doubt that the plaintiff intends to convert the existing building into a hostel for students and that the existing building is situated in a locality where several educational institutions are situated. Moreover the building is also rear to the court premises and the market and would be suitable for accommodation of persons visiting Jodhpur for attending to their litigation in courts or for business purposes. Learned Counsel for the respondents urged that no student has been examined nor persons who may require the use of the rest house have been examined on behalf of the plaintiff. It may be pointed out in this connection that the existing building is sought to be converted by the plaintiff into a hostel for students. As for the construction of a lest house, it is only proposed that after the hostel is constructed, the plaintiff would raise donations and make construction of apartments on the first floor, which are intended to be utilised as a rest house for the persons of the community visiting Jodhpur for attending to their court work or for business purposes. It is apparent that the property of the Maheshwari Samaj, situated neare the Umaid Hospital known as Harnath-Ka-Bera is used for providing accommodation to relations and attendants of patients, who come to Jodhpur for treatment at the Hospital and is suitable for such purpose, but those very premises cannot be used for providing accommodation for students coming from out-side for studying in the various educational institutions in the city of Jodhpur. Learned Additional Civil Judge committed an error in holding that the same amount of expenditure would be incurred in constructing a new hostel building as would be incurred in making suitable alterations in the existing building to make it fit for use as a hostel for students. It may be pointed out that Jodhpur has a University and better educational facilities and the necessity for providing hostel accommodation to the students coming from nearby areas for studying in Jodhpur cannot be disputed. The necessity of a hostel for students cannot be denied only because the intending students have not been examined in evidence. The argument that as the plaintiff possesses enough land so it should construct a new hostel building cannot be accepted. The plaintiff cannot be forced to make a new construction of a hostel building merely because spare land is available with the plaintiff. The construction of a new hostel building would require the expenditure of a huge amount of money, while the conversion of the existing building for use as a hostel would merely require making of some alterations therein.
20. The learned lower court has held that the defendant-respondents are poor persons and they have been living in the premises on a low rent for a considerable time and it would be difficult for them to get another premises in the neighborhood nor Government accommodation has been made available to them. Looking to the fact that the defendant-respondents are poor persons, the plaintiff may consider the question of providing alternative accommodation to them, if the same is available with the plaintiff. But merely because the respondents have been residing for a long time on low rents in the premises, which forms part of the building which is n JW sought to be utilised for a purpose of public utility, namely of providing hostel facilities for students coming from outside for study at Jodhpur, can hardly be a ground for depriving the benefit of the building being made available to the students of the Maheshwari community. After all the benefit of an individual or a few individuals should give way to the welfare and benefit of the community at large or a section of the community. On account of the construction of a hostel for students, which is a philanthropic purpose, a large number of students of Maheshwari community, who come to Jodhpur from the adjoining areas for the purpose of studying in the various educational institutions located here, would be benefited and in that event the loss caused to the defendant-respondents cannot outweigh the advantage and public good which would result from the use of the building as a hostel for students.
21. Moreover, it is difficult to accept the plea that it is not possible for the tenants to get alternative accommodation in a place like Jodhpur, as there is evidence on record that several persons similarly situated as the defendants are residing in the same locality. Thus it cannot be held that it is not possible for the defendants to get alternative accommodation. The mere fact that the tenants have been living in the premises in question for a long time and some inconvenience would be caused to them on account of shifting from the present place cannot deter the court from passing a decree for eviction, as such inconvenience would always be caused when a decree for ejectment is passed. It may be that the defendants may have to pay higher rent for alternative accommodation, but such difficulties inevitably arise in practically every case of eviction from the premises which have peen occupied by a tenant A similar view was taken in Malia Kalandai Mudaliar v. M.R. Swaminathan 1970 RCR 551 and in Gunnabatula Papachari v. The Country Tobacco Merchants Association by its President Vijaywada 1975 RCJ 75. In the last mentioned case, the buying was required by the Association of Merchants and Traders, carrying on commercial activities, for its office and it was held by a learned Judge of the Andhra Pradesh High Court that hardship that may be caused to the tenants would not out-weigh the advantage or benefit which would be gained by the Association.
22. It may be pointed out that even the defendant respondents have not denied the necessity of a hostel for students. After a thorough consideration of the record, I am, therefore, of the view that the conversion of tin existing building into a hostel for students is a philanthropic purpose and that the plaintiff reasonably and bonafide requires the building for the aforesaid use. 1 also hold that greater hardship would be caused to the plaintiff by not passing a decree for eviction than would be caused to the defendant-respondents by passing a decree eviction.
23. I have also considered the question as to whether the defendant-respondents or some of them could be allowed to continue in the existing portion occupied by them. From a perusal of the site-plan Ex.2 produced by the plaintiff, it appears that if the defendant-respondents are allowed to continue to occupy the portions now in their possession, then the existing building cannot be utilised as a hostel for students, as the portions of the building of the respondents lie in the interior part of the building which cannot be separated from the main building and a decree for partial eviction cannot be passed. If the defendant-respondents are allowed to continue to reside in the portions of the building under their occupation at present and retain possession of such portions, then the whole purpose of constructing a hostel for students would be frustrated, as it would not be proper to provide accommodation for residence to the students, along with residence of the families of the respondents, within the same building.
24. In the result, all the four appeals are allowed. The judgment and decrees pas ed by the learned Additional Civil Judge, Jodhpur, dated March 24,1973 are set aside and all the four suits filed by the plaintiffs are decreed in respect of eviction of the defendant-respondents from the premises in their respective occupation. The defendant-respondents are allowed two months' time to vacate the premises. The parties are, however, left to bear their own costs in these appeals.