1 S.B.CIVIL SECOND APPEAL NO.323/2007 (Ashok Ghosh Vs. Rajiv Sharma & anr.) DATED : 7th August 2007 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.M.S.Purohit for the appellant By way of this appeal, the defendant-appellant seeks to assail the judgment and decree dated 01.05.2007 passed by the Addl. District Judge No.1, Bikaner in Civil Appeal No.12/2006 whereby judgment and decree dated 24.02.2006 passed by the Civil Judge (Sr.Division) No.3, Bikaner in Civil Suit No.68/2004 decreeing the suit for eviction filed by the plaintiffs-respondents has been affirmed. The suit was filed by two plaintiffs, Rajiv Sharma son of Ravindra Kumar and Vikram Kumar son of Krishan Kant with the averments in the plaint that the defendant-appellant was a tenant of the suit premises, being Quartaer No.2 of the property known as Ram Ratan Krishan Kant Quarters situated at Jail Well, Bikaner; that earlier Ram Ratan was the owner of property and after his death, Krishan Kant succeeded to the property and after Krishan Kant, his heirs divided the property by mutual agreement whereby quarter in question came in the share of Ved Prakash and Vikram Kumar and it was also decided that after Ved Prakash, plaintiff No.1 Rajiv Sharma 2 shall be its owner with the plaintiff No.2 Vikram Kumar. The plaintiffs averred that Ved Prakash expired on 10.12.2000 and hence, they were the owners of the property; that the property in question was on rent with defendant at Rs.100/- per month; and that the defendant has not made payment of rent since the year 1991 and was, therefore, defaulter in payment of rent. The plaintiffs further averred that the plaintiff No.1 Rajiv Sharma was earlier residing at Bangalore and now has come down to Bikaner on 14.12.2000 and, therefore, the said quarter was required for himself and his family. The plaintiffs alleged that the defendant was contacted and requested to vacate the premises to which he refused and even declined to accept the plaintiffs as owners of the property. Thus, the plaintiffs claimed decree for eviction and arrears of rent. The defendant-appellant contested the suit and while admitting himself as tenant in the suit property stated rate of rent at Rs.50/- per month only and himself being always ready and willing to make payment of rent. The defendant further averred that heirs of Shri Ram Ratan, owner of property, have never informed as to who was the owner nor was he informed of any alleged family arrangement. In relation to the plaintiff No.1 Rajiv Sharma, the defendant asserted that he was residing at Bangalore and was carrying on cloths 3 business in the name of “Manoj Enterprises” and thus, had no reasonable and bona fide requirement of the suit premises. The defendant denied ownership of the plaintiff for want of knowledge but submitted that he was ready to make payment of rent to the actual owner. On the pleadings of the parties, the learned trial court framed relevant issues for determination of the questions involved in the case. In evidence, the plaintiffs examined PW-1 Rajiv Sharma, PW-2 Smt.Matwa, sister of the mother of plaintiff No.1, and PW-3 Kamal Kishore, an alleged witness to the document of family settlement. The defendant- appellant examined himself in rebuttal. It may be pointed out that the plaintiffs sought permission to prove the so-called family settlement by way of secondary evidence but such permission was declined by the learned trial court by its order dated 27.05.2004. The learned trial court after examining the evidence on record observed in issue No.1 that according to the plaintiffs themselves, rent was demanded by them from the defendant for the first time only on 17.12.2000 while asserting their ownership and then the suit was filed on 16.01.2001, therefore, the defendant could not be held defaulter in payment of rent. In relation to issue No.5 on the question of denial of title, again, the learned trial court held that there was 4 no evidence to the effect that the defendant was informed of the so-called family arrangement and he denied the title of the plaintiffs despite knowledge. However, on the question of reasonable and bona fide requirement in issue No.2, the learned trial court believed the case of the plaintiff No.1 Rajiv Sharma; and disbelieved the assertion of the defendant that the said plaintiff Rajiv Sharma was residing at Bangalore; and with the observation that the landlord is the best judge of his need, and that Rajiv Sharma was not in possession of any suitable alternative accommodation, held that he required the premises reasonably and bona fide. The learned trial court further considered the question of comparative hardship and partial eviction in issues Nos.3 and 4 and found that the plaintiff Rajiv Sharma was residing at Bikaner with his mother's sister and was in need of the quarter in question whereas other rental accommodation was available in the locality in question as per the admission of the defendant. The learned trial court also found that the quarter in question could not accommodate two families and, therefore, plaintiff's need could not be satisfied with partial eviction. Accordingly, the learned trial court proceeded to decree the suit for eviction. The first appellate court dealt with all the submissions made on behalf of the defendant-appellant and endorsed the 5 findings of the learned trial court. Hence, this second appeal. Assailing the judgment and decree aforesaid, it has been contended on behalf of the appellant that there is no specific pleading regarding reasonable and bona fide requirement of the plaintiff and on the phraseology used in the plaint stating it to be 'Sahabhavi' (सहभव) requirement, no decree for eviction could have been passed in the present case; that the plaintiffs have totally failed to show any title in them; that the plaintiff No.2 Vikram Sharma never appeared in evidence; that neither there is any documentary evidence nor there is any other cogent evidence by which it could be believed that the plaintiffs are the title holders of the suit property and are the landlords for the appellant; that the learned courts below had been in error in granting a decree for eviction on reasonable and bona fide requirement of the plaintiff No.1 despite the fact that the said plaintiff has stated his present address being that at Bangalore and, there is no other evidence on record to even suggest that he has settled down at Bikaner and was in need of suit premises; and that learned courts below have erred in not recording any specific finding in relation to the question of comparative hardship. Having given a thoughtful consideration to the submissions made by learned counsel for the appellant and having examined record of the case, this Court is clearly of 6 opinion that this appeal does not involve any substantial question of law and does not merit admission. The question of title of the plaintiffs to the suit property is not of much relevance for the suit being for eviction and recovery of arrears of rent against the tenant. So far the question of relationship of landlord and tenant is concerned, the appellant who is admittedly a tenant in the suit property has suggested that he was the tenant of late Shri Ram Ratan and was not informed as to who, out of the several heirs of late Shri Ram Ratan, became owner of the suit property. The defendant-appellant has admitted in his cross-examination that the quarter in question was taken on rent about 45 years back during the life-time of his father who had expired in the year 1992. Though the appellant asserted that he was continuing as tenant after his father but then, admitted that he never made payment of any rent; and suggested the reason that he could not ascertain the true owner of the property and it was only after filing of the suit that he came to know that the plaintiffs were claiming ownership rights. It is true that the plaintiffs have not produced any documentary evidence in relation to the title to the property but have clearly shown in their evidence that the premises were part of the property belonging to late Shri Ram Ratan and were succeeded by his sole heir Shri Krishan Kant; and after demise of Shri Krishan 7 Kant, his heirs had divided property by mutual agreement. The fact that original landlord of the property Ram Ratan and his successor Krishan Kant have since expired is not in dispute. The plaintiff No.2 Vikram Kumar is the son of said Shri Krishan Kant and the plaintiff No.1 Rajiv Sharma is son of the deceased daughter of Krishan Kant. Therefore, it cannot be said that the plaintiffs are strangers qua the property in question. In the fact situation of this case, the learned courts below cannot be said to have erred in proceeding on the basis that landlord and tenant relationship exists between the plaintiffs and the defendant fundamentally for the reason that the defendant is admittedly a tenant in suit property belonging to the predecessors of the plaintiffs; and then, there is not shown any other claim of any other person as landlord. The submission regarding want of documentary evidence in relation to the title or relationship of landlord and tenant has, therefore, no substance. So far the question of reasonable and bona fide requirement of plaintiff No.1 is concerned, both the learned courts below have thoroughly examined the evidence produced on record and have believed the case of the plaintiffs and there does not appear any error of law that would require interference in this second appeal. Mere reference to some phraseology or some words in the plaint 8 cannot be decisive of the matter nor the submissions are related with the substance of matter. It is true that in the plaint the plaintiff No.1 has been stated presently residing at Bangalore but in the registered address filed with the plaint, his address has been stated at Jail Well, Bikaner. Even if plaintiff No.2 has not been examined in evidence, there is no adverse effect on the case of the plaintiffs inasmuch as the plaintiff No.1 Rajiv Sharma has appeared in evidence and has been thoroughly cross-examined by the defendant. PW-2 Smt.Matwa, sister of mother of the plaintiff No.1 has also appeared in evidence and has pointed out that Rajiv was earlier residing at Bangalore and was now residing with her in one room and was in need of suit premises for himself and his family; and there is nothing in cross-examination to discredit her statement. The defendant-appellant though came out with an assertion that the plaintiff No.1 was residing and carrying on business at Bangalore but has failed to substantiate such assertion by any cogent evidence. The questions of comparative hardship and partial eviction have also been examined by learned courts below on relevant considerations; and there does not appear any error of law inviting interference in second appeal. In overall view of the matter, this Court is satisfied that findings reached by learned courts below in this case are valid 9 findings of fact and this appeal does not involve any substantial question of law. The appeal fails and is, therefore, dismissed summarily. At this stage, learned counsel for the appellant submitted that the respondents have levied execution and the the appellant may be granted two months time for the purpose of making alternative arrangement before vacating the suit premises. This second appeal does not involve any substantial question of law and is being dismissed in limine without there being any appearance on behalf of the respondents. Hence, without making any order on such request of the appellant, it is left open for the appellant to make a request before the executing court that may be considered by the executing court in accordance with law. (DINESH MAHESHWARI),J. MK