CSA 229/09 Balwant Vs. Gopal Prasad and another (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil Second Appeal No.229/2009 Balwant Vs. Gopal Prasad and another Date Of Judgment :: 10.7.09 Hon'ble Mr. Justice Jitendra Ray Goyal Mr. S.C. Gupta, for appellant. Mr. S.P. Sharma with Mr. Hemendra Goyal, for respondents. .......... By the Court :- This is second appeal filed by the defendant-tenant under section 100 of the Code of Civil Procedure against the judgment and decree dated 20/3/2009 passed by Additional District Judge no.2, Deeg (Bharatpur) who affirmed the judgment and decree of eviction dated 7/3/2005 passed by Civil Judge (Junior Division), Kama, District Bharatpur in Civil Suit No.25/1997. 2. Brief facts giving rise to this appeal are that plaintiff-respondent filed a suit for eviction from the suit shop on the ground of personal and bonafide necessity and sub-letting. CSA 229/09 Balwant Vs. Gopal Prasad and another (2) 3. The defendant-tenant filed the written statement and came out with the case that shop is not required to the plaintiff or his son bonafidely and reasonably. The plaintiff wanted to increase the rent and to pressurize the tenant this suit has been filed. It was further pleaded that the plaintiff is having some other shops lying vacant. The defendants also denied the allegations of sub-tenancy and stated that defendant Balwant is the tenant in the suit shop who is paying the rent regularly. 4. Issues were framed. Evidence was recorded. The trial court decreed the suit on both the grounds-personal and bonafide necessity and sub-letting. On the appeal filed by the defendant-tenant, the First Appellate Court reversed the findings on the issue of sub-letting but affirmed the findings on the issue of personal and bonafide necessity, partial eviction and comparative hardship. Hence, this appeal. 5. Heard learned counsel for the parties on the point of admission of the appeal and perused the impugned judgments and the other CSA 229/09 Balwant Vs. Gopal Prasad and another (3) relevant material available on the record. 6. It was inter alia contended that both the courts below have not properly and judiciously appreciated the evidence and the material brought before them on the issue of personal and bonafide necessity. It was then submitted that it has been brought to the notice of the First Appellate Court in regard to the subsequent events that two more shops belonging to the plaintiff also fell vacant but this fact has also not been properly considered. It was then submitted that plaintiff has not pleaded in his plaint that partial eviction of the suit shop is not possible and this issue has been decided against the defendant without any evidence on this issue. In support of this contention, reliance has been placed upon the judgment in Rahman Jeo Wangnoo Vs. Ram Chand and others, reported in AIR 1978 Supreme Court 413. 7. Per contra, learned counsel for the respondents supported the impugned judgment and decree and contended that after due appreciation of evidence and material on record the decree of CSA 229/09 Balwant Vs. Gopal Prasad and another (4) eviction has been passed and concurrent finding of fact should not be disturbed in second appeal. 8. I have considered the rival submissions made at the bar. So far findings on the issue of personal and reasonable bonafide requirement is concerned, both the parties adduced their evidence and on this question of fact both the courts below after detailed discussion of the evidence and material available on the record decided in favour of the plaintiff and it is settled position of law that re- appreciation of evidence in second appeal is not permissible. So far submission made by the counsel for the appellant on the point of partial eviction is concerned, it is needless to say that under the Rajasthan Premises (Control of Rent & Eviction), Act, 1950 duty has been cast upon the civil court to see before passing the judgment of eviction on the ground of personal and bonafide necessity that whether eviction of the tenant from part of premises can substantially satisfy the reasonable requirement of the landlord. Hon'ble the Apex Court in Rahman Jeo Wangoo's CSA 229/09 Balwant Vs. Gopal Prasad and another (5) case (supra) had occasion to consider this vital aspect of the matter and held that judicial exploration is required on this point that whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted irrespective of this fact that specific pleading has not been taken in this regard. 9. In the instant case, the First Appellate Court has considered the issue of partial eviction on the basis of material available on the record and concluded that partial eviction is not possible, in which I do not find any perversity or illegality. No substantial question of law arises in this appeal. 10. Consequently, this second appeal along with the stay application is dismissed at the admission stage. (J.R. Goyal),J. V.S. Shekhawat/- Jr. P.A.