S.B.CIVIL SECOND APPEAL NO.98/2008 L.Rs of Ghewar Chand & Ors. vs. L.Rs. of Dr.Madan Mohan & Ors. DATE OF ORDER : 10/9/2008 1/5 S.B.CIVIL SECOND APPEAL NO.98/2008 (L.Rs of Ghewar Chand & Ors. vs. L.Rs. of Dr.Madan Mohan & Ors.) DATE OF ORDER : 10/9/2008 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.B.D.Sharma, for the appellants. Mr.R.R.Nagori, for the respondents. 1. This appeal of defendants-tenant is against the concurrent judgments of two courts below granting decree of eviction on the ground of personal bonafide necessity of the plaintiff. 2. Learned counsel for the defendants-tenant urged that since the plaintiff Rajendra Sharma himself went away to U.S.A. for studies and settled there and he also unfortunately expired there, the personal bonafide necessity of the plaintiff eclipsed and, therefore, the Courts below have erred in giving the decree of eviction. He further submitted that the present suit was filed by the power of attorney- Dr.Madan Mohan, brother of plaintiff Rajendra Sharma and even after expiry of Dr.Madan Mohan, power of attorney holder, his legal representatives were taken on record, who could not be granted the decree of eviction on account of personal bonafide necessity of plaintiff. He further submitted that for suit premises namely plot nos. S.B.CIVIL SECOND APPEAL NO.98/2008 L.Rs of Ghewar Chand & Ors. vs. L.Rs. of Dr.Madan Mohan & Ors. DATE OF ORDER : 10/9/2008 2/5 843 and 844 in question there was no default in payment of rent on the part of appellants-tenant and, therefore, the courts below have erred in decreeing the eviction on the ground of default also. 3. He also urged that even the wife, son and daughter of the plaintiff Rajendra Sharma have settled in USA and, therefore, decree under appeal deserves to be set aside. 4. These submissions are opposed by learned counsel for the plaintiff-respondents Mr.R.R.Nagori, who straneously submitted the findings of two courts below about the personal bonafide necessity are findings of fact and no question of law arises for determination by this Court in second appeal under Section 100 of CPC. He submitted that the power of attorney given to Dr. Madan Mohan clearly stipulated and authorised him to take all measures for the safety and security of the suit premises in question including right to sue for eviction and, therefore, the locus of the said power of attorney Dr. Madan Mohan cannot be questioned at this stage. 5. He further submits that family members of the respondent S.B.CIVIL SECOND APPEAL NO.98/2008 L.Rs of Ghewar Chand & Ors. vs. L.Rs. of Dr.Madan Mohan & Ors. DATE OF ORDER : 10/9/2008 3/5 plaintiff wanted to shift to India and construct their residential house at the plot no.843 and 844 in question, therefore, bonafide need of the plaintiff was clearly established before the learned trial court and the said finding of the two courts below cannot be said to be perverse in any manner. He also submitted that the relationship of landlord and tenant was duly established under the rent note Ex.1 dated 24/10/1964 executed between the father of the plaintiff Rajendra Sharma, Shri Govind Ram ji, and defendant Ghewar Chand, whose legal representatives are now on record. He submitted that the findings of default in payment of rent are also clearly established and the same do not call for any interference by this Court in second appeal. 6. Having heard learned counsels at length and upon perusal of both the judgments of courts below, this Court is satisfied that no substantial question of law arises for determination by this Court under Section 100 of CPC. The relationship of tenant and landlord stood established by Ex.1, rent note dated 24/10/1964 between the landlord Govind Ram and tenant Ghewar Chand. The suit premises in question was given by way of Will by Govind Ram to his son S.B.CIVIL SECOND APPEAL NO.98/2008 L.Rs of Ghewar Chand & Ors. vs. L.Rs. of Dr.Madan Mohan & Ors. DATE OF ORDER : 10/9/2008 4/5 Rajendra Sharma. The question of title is not relevant for the eviction matters and, therefore, the contention raised by the learned counsel for the defendant against the Will cannot be gone into. The findings as to personal bonafide necessity and default are also findings of facts and if they are based on cogent material and evidence on record, the same cannot be held to be perverse so as to require any interference in second appeal. 7. It is well settled by catena of judgments of Hon'ble Supreme Court that second appeal is not a third trial on facts by High Court and unless substantial question of law arises, the High Court cannot entertain the second appeal. Against concurrent findings of two courts below about default and personal bonafide necessity, this Court is satisfied that no substantial question of law arises. Merely because the plaintiff Rajendra Sharma went away to USA for studies in the year 1976 and he even settled thereafter in USA, it does not mean that he or his family members cannot come back and settle in India by constructing their own residential house or clinic at the suit premises. It is not for the tenant to dictate the terms in this regard as to how the suit premises in question have to be utilized by the landlord. S.B.CIVIL SECOND APPEAL NO.98/2008 L.Rs of Ghewar Chand & Ors. vs. L.Rs. of Dr.Madan Mohan & Ors. DATE OF ORDER : 10/9/2008 5/5 8. The findings of comparative hardship and partial eviction also found against the appellants-tenant do not require any interference. Thus, over all this Court finds no ground to interfere with the concurrent findings of facts of two courts below. 9. The second appeal is found to be devoid of merit and same is accordingly dismissed. (DR.VINEET KOTHARI), J. item no.s-4 baweja/-