S.B.CIVIL SECOND APPEAL NO. 67/1990 Durga Prasad (since deceased) and others. Versus. Chandra Shekhar and others. 29/08/2008 HON'BLE MR.JUSTICE ASHOK PARIHAR. Mr. JP Goyal, for the appellants Mr. GK Garg, for the respondents Suit for eviction filed on behalf of plaintiffs- respondents was decreed by the trial court vide judgment and decree dated 23/05/1980 on the ground of bonafide necessity of one Ravi Shanker. During the pendency of the appeal before the lower appellate court, the above Ravi Shanker joined the Government service. As such, the decree of the trial court was modified by the lower appellate court to the extent that in case the above Ravi Shanker does not resign from Government service and start the business as alleged by him in the premises in question, the defendants-appellants shall be free to take possession of the premises in question. The judgment and decree dated 09/01/1990 passed by the lower appellate court is under challenge in the present appeal. As has come on record, during the pendency of the present appeal, the above Ravi Shanker also died on 21/05/1998. Learned counsel for the defendants-appellants submitted that the decree of eviction was passed on the ground of bonafide necessity of the above Ravi Shanker and after his death the bonafide necessity would not survive. In the alternative, it has been submitted that the legal heirs of the above Ravi Shanker can earn their livelihood from the part of the premises in question and the decree of partial eviction can be passed by this Court in the present appeal. Learned counsel for the plaintiffs-respondents, on the other hand, submitted that law in regard to bonafide necessity pleaded at the initial stage has already been settled by the Hon'ble Supreme Court. However, so far as the plea of partial eviction is concerned, neither the same has been pleased nor any material has been placed on record so as to even make out a case for remand of the matter on the question of partial eviction. After hearing counsel for the parties, I have carefully gone through the material on record. The trial court, while passing the decree of eviction has decided the issues of bonafide necessity as also comparative hardship in favour of the plaintiffs- respondents. While deciding the issue of comparative hardship, reference has also been made to the question of partial eviction to the extent that the business of timber sought to be started by the plaintiffs-respondents would not be possible from partial eviction as pleaded by the parties. The judgment and decree passed by the trial court to the extent of eviction of the suit premises has also been affirmed by the lower appellate court. Though not required, the modification has already been made to the extent that in case the above Ravi Shnaker does not resign from the Government Service and start his business as alleged in the suit, the defendants-appellants will be free to take possession again of the suit property. As the fate would have it, the above Ravi Shanker also died during the course of pendency of the present appeal survived by his widow, two daughters and minor son. Though, it has been submitted that the widow has already got a compassionate appointment after death of her husband, however, nothing has been placed on record to show that the widow and her children have any other sufficient source of livelihood. On the other hand, as per evidence on record rather the defendants-appellants are not doing any effective business from the suit premises. The contention of learned counsel for the appellants that the family of deceased Ravi Shanker now may not start the same business which was initially intended to be proposed, cannot be accepted now at this stage in absence of any material. Having considered entire facts and circumstances, since after due consideration proper discretion has already been used by both the courts below, in the facts and circumstances, no further interference is called for by this Court. Moreso, when the findings have been given on the basis of evidence on record, such findings do not make any substantial question until and unless the same are shown to be absolutely perverse and not tenable as per evidence. The suit was filed in the year 1974. The decree of eviction was passed by the trial court in the year 1980. Learned lower appellate court decided the matter in the year 1990. More than 33 years have lapsed. The family of the deceased Ravi Shanker is still seeking redressal of their grievances and struggling for survival. In the circumstances, the defendants-appellants are now directed to vacate the suit premises on or before 01/11/2008 and also make the payment of rent till vacation of the suit premises. An undertaking in this regard be submitted before the trial court within 15 days. In case of violation of any of the conditions of the undertaking, the plaintiffs- respondents shall be free to execute the decree passed by the courts below in accordance with law and even seek remedy if any before this Court. The appeal is disposed of accordingly. (Ashok Parihar), J.