IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T HANSRAJ V/S RAJKUMARI S.B.CIVIL SECOND APPEAL No.166 of 2005 Date of Judgment : 05 October, 2007 PRESENT HON'BLE SHRI N.P.GUPTA,J. Mr. H.R. Soni and Mr. R.R.Nagori, for the appellant. Mr. R.K. Thanvi, for the respondent. BY THE COURT: This second appeal has been filed by the defendant appellant tenant, against the decree of eviction passed by the learned lower Appellate Court, on the ground of reasonable and bonafide necessity of the plaintiff, and also by deciding the question of partial eviction, and comparative hardship in favour of the plaintiff. The suit was dismissed by the learned trial court. The facts of the case are, that the plaintiff filed the present suit for eviction on 27.10.1995. The allegations are, that the house no. 6, B-Block, Sriganganagar adjacent to corner shop type Chhaper, which was let out by Chunnilal husband of Saroj Kumari to the defendant in the year 1990 at a monthly rent of Rs. 1000/-, which rent was subsequently increased to Rs. 1100/-. The defendant paid rent to Chunnilal upto 31.3.1993. It is alleged that the said Chhaper exists on municipal land, which was taken on rent by Saroj Kumari, and Saroj Kumari sold the Malba of Chhaper to the plaintiff in the year 1993, and now it is recorded in the name of plaintiff, consequently Saroj is retaining no concern with this. Thus, there is relationship of landlord and the tenant between the plaintiff and the defendant. Then, it is alleged that Chhaper was taken on rent by the defendant from husband of Saroj, and in that regard the husband Chunnilal gave a registered notice dt. 30.7.1993 to the defendant, directing him to pay rent since 1.4.1993 onwards to the plaintiff. Likewise identical notice was given by the plaintiff to the defendant, both of which notices were received. Thus, also relationship of landlord and tenant is established. With this it is alleged, that the defendant has not paid the rent for 30 months, and has claimed eviction on the grounds mentioned in para-5 being default in payment of rent, and reasonable and bonafide necessity of the plaintiff, as the plaintiff's daughter in law Smt. Vinod Bakshi, who is M.A., M.Ed. qualified, and was working as teacher in Vivek Memorial Public School till 30.11.1994, requires the premises for establishing a computer coaching centre. This Vinod Bakshi is claimed to be living in the house no. 89, in the B-Block. Size of the premises was pleaded to be 12 x 2 20 ft. Then, the pleadings about the impartibility, and comparative hardship have been taken. A written statement has been filed by the defendant on 22.5.1996, contesting the suit. Para-1 of the plaint was denied, and it was pleaded that the suit shop was taken on rent from Chunnilal at a rent of Rs. 1000/-, and he is continuing in tenancy. It was admitted that the shop existed on the land of Municipality. However, the fact of its purchase by the plaintiff in April, 1993 was denied, and it was pleaded that the shop was taken on rent from Chunnilal, and rent was being received by him only. It was also pleaded that the factum of purchase of shop by plaintiff is denied, and that plaintiff never made any demand of rent from the defendant. Then, replying para-3 it was pleaded that Chunnilal never gave any notice to the defendant about having sold the shop, nor any such notice was sent by the plaintiff. It was denied that the plaintiff is entitled to maintain the suit. Then, replying para-4 the plea of the rent @ Rs. 1100/- per month being in arrears from 1.4.1993 to 30.9.95 was denied. It was pleaded that the plaintiff never made demand of rent, nor gave any notice, and the plaintiff is not entitled to receive any rent from the defendant. Then, replying the grounds pleaded in para-5, the allegation of default was denied, pleading that the defendant has not committed any default. Denying the plea of bonafide necessity, the academic qualification 3 of the plaintiff's daughter in law was denied, and alternatively it was pleaded, that the qualification cannot be said to be appropriate for computer coaching. It was pleaded that the alleged requirement is only an excuse. The daughter in law has no experience of computer coaching. Then, in further alternative it was pleaded, that even if it is found that the plaintiff's daughter in law requires some space, then the plaintiff and his family has various other alternative accommodations, which can be used, details were detailed in para-5 (ख) of the written statement. Thus, the reasonable and bonafide necessity was denied, and pleading about partial eviction and comparative hardship was also denied. In additional pleas counter claim was lodged, pleading inter-alia, that Chunnilal had earlier let out this shop to one Kashmirilal @ Rs. 500/- per month, which tenant was carrying on business in the name of Arora Medical Store, and after his vacating, it was let out by Chunnilal to the defendant, rent was increased from time to time from 500/- to Rs. 1000/-, which could not be increased, and the defendant is entitled to have the standard rent determined at Rs. 500/- per month. It was also pleaded that no notice was given by the plaintiff about having purchased the shop, nor any demand of rent was ever made, and if the purchase of shop by the plaintiff is established, still the defendant is entitled to have the rent determined, and in this regard court fees was also paid. 4 The plaintiff filed a reply to the counter claim on 22.5.1996. The plaintiff gave details and explanation about the other premises, pleaded by the defendant to be available to the plaintiff, showing their non availability and/or non suitability. Then, reply to the counter claim was also given, pleading inter-alia that the rent could be increased by consent, and that prevalent market rate is much higher. It was also pleaded, that the plaintiff had given a specific written notice to the defendant. Thus, the counter claim was prayed to be dismissed. Learned trial court framed nine issues. Issue no. 1 was, as to whether the monthly rent of premises is Rs. 1000/-, issue no. 2 was as to whether the plaintiff has a right to maintain the suit, placing burden on the defendant. Then, issue no.3 is about the defendant having committed default in payment of rent from 1.4.93 to 30.9.1995. Issues no. 4, 5, and 6 relate to the question of reasonable and bonafide necessity, and partial eviction, and comparative hardship. Then, issue no. 7 is about the plaintiff's entitlement to claim arrears of rent amounting to Rs. 33,000/-. The above nine issues were framed on 26.8.97. On 8.12.98 another issue no. 10 was framed, being as to whether the shop in question was purchased by the plaintiff from its owner Saroj in the year 1993, and on that basis, there is relationship of landlord and tenant 5 between plaintiff and defendant. During trial the plaintiff examined himself as P.W.1, and also examined her daughter in law as P.W.2, while the defendant himself examined as D.W.1, and produced one Ramesh Kumar as D.W.2, to depose about availability of other accommodation, and to deny the bonafide necessity of the plaintiff. In documentary evidence the plaintiff has produced document of purchase being Ex.-1, which has been held by both the learned courts below to be not admissible in evidence for want of registration and insufficiency of stamp. Then Ex. 2, 3 and 4 have been produced, being copy of the notice signed by Chunnilal to defendant, its postal receipt, and its acknowledgment card, about delivery of notice. Then, Ex. 5, 6, 7 have been produced being copy of the notice sent by the plaintiff to the defendant, asking the defendant to pay the arrears of rent, and vacate the shop, its postal receipt, and acknowledgment card, about its delivery. Then, Ex. 8, 9 and 10, being another notice given by the plaintiff to the defendant appellant, calling him upon to deposit the arrears of rent, and informing about Chunnilal having sold the shop to the plaintiff, its postal receipt and acknowledgment card, about its delivery have been produced. Then, Ex. -11 has been produced being original degree of M.A. granted to the plaintiff's daughter in law, Ex. 12 is the marks-sheet of M.Ed. First Year, Ex. 13 is the original marks-sheet of M.Ed. Second Semester of 6 plaintiff's daughter in law, and Ex. 14 is the original certificate, about the plaintiff's daughter in law having passed one year diploma course in computer programming, issued by S.D. (P.G.) College, Sriganganagar. The defendant has not produced any documentary evidence. The learned trial court decided issue no.1 in the manner, that the monthly rent of the premises was Rs. 1000/-. Then issue no. 2 and 10 were decided together. It was held, that the document Ex.-1 is not admissible in evidence, and the notice Ex. 2, 5 and 8 were believed to have been served on the defendant. It was found, that the plaintiff has proved the signatures of Chunnilal, A to B, on Ex.2, on which aspect there is no cross examination, and that, by notice Ex. 5 and 8, the plaintiff has intimated, that he has purchased the premises. Thus these documents are admissible in evidence. It was also held, that in case notice is not received by the defendant, even then the relationship of landlord and tenant was found to exist between the plaintiff and defendant. Then, deciding issue no. 3, the defendant was found to be defaulter, and was given benefit of Section 13(6), being his first default. Deciding issue no. 4, relating to bonafide necessity, it was found, that the plaintiff has another shop adjacent to Khadi Bhandar, has one shop of Anil which is lying vacant, there are shop of National Commercial College, in the name of her husband, on upper storey there are two Chobaras, 7 which are lying vacant. The family members of the plaintiff being Anil and Sanjeev had sold two shops during pendency of the suit, and that, the plaintiff has admitted, that at the time of Anil selling the shop, opening of the computer coaching centre was lost sight of. Therefore, the requirement of the plaintiff was not found to be bonafide and reasonable. It was also found, that in the residential house the plaintiff has one room, having opening on the road side, which is found to be enough and sufficient. The plaintiff, as per her desire, can use any of these premises for her daughter in law, for carrying on her work. Of course, it was found, that landlord is the best judge of his need. Then the learned trial court found, that considering the circumstances it cannot be said, that the plaintiff has reasonable and bonafide necessity of the premises, and the issue was decided against the plaintiff. Issue no. 5 was decided in favour of the plaintiff, holding that the suit shop cannot be partitioned, and by partition of it nobody's requirement can be satisfied. Then, issue no. 6 about comparative hardship was also decided in favour of the defendant. Issue no. 7 was decided in the manner, holding the plaintiff to be entitled to the amount of rent, mentioned therein. Then, issue no. 8 regarding standard rent had been struck down, as it was not pressed by the defendant on 20.7.2001. Thus, the suit for arrears of rent was decreed, however it was not decreed for eviction. 8 Aggrieved of this, the plaintiff filed an appeal before the learned lower Appellate Court. The plaintiff challenged the finding of the learned Trial Court on the issue of reasonable and bonafide necessity, and comparative hardship being issues no. 4 and 6. While the defendant, even without filing of cross objection, claimed to support the impugned judgment and decree of the learned trial court, but wanted to challenge the finding on the issues decided against him, and as appears from the judgment, that the defendant challenged the findings only on issues no. 2 and 10, contending that when the document Ex.-1 is not found to be admissible in evidence, it was for the plaintiff to prove the factum of purchase, and unless it is proved, the plaintiff cannot be treated to be landlord. It was also contended, that the plaintiff had not received rent from the tenant, and therefore, also she cannot be termed as landlord. The notice given by Chunnilal was claimed to be baseless, and the notice given by Saroj Kumari was pleaded to be not received, therefore, since no rent has been paid by the defendant to the plaintiff, there is no relationship of landlord and tenant between the parties. Learned lower Appellate Court took up issue no. 1, and affirmed finding of the learned trial court. Then, findings on issue no. 2 and 10 were also reconsidered by learned lower Appellate Court, and the learned lower 9 Appellate Court concurred with the finding of the learned trial court, about the document Ex. 1 being not admissible in evidence for want of registration, and stamp duty, and then considered about the plaintiff's right to file the suit, and in that process considered, that the plaintiff has deposed that Chunnilal had given notice to the defendant Ex.2, bearing signatures of Chunnilal A to B, on which she has not been cross examined. Then, he has proved Ex. 3, 4, 5 and 8 informing to have purchased the premises. They were sent on the defendant’s registered address, which address was admitted to be correct, and therefore, it was found, that these notices were served on the defendant. Inter alia with this it was found, that the conclusions arrived at by the learned trial court is perfectly in order, and as no other conclusion is possible. It was found that non payment of rent does hardly matter, and that the defendant was duly intimated, that the property has been transferred to the plaintiff in April, 1993, and thereafter rent was intimated to be payable to the plaintiff, and therefore, the findings on these issues were affirmed. Then, deciding issue no. 3, it was found, that the plaintiff has deposed the money to be outstanding from 1.4.93 to 30.9.95, and nothing has been suggested in the cross examination in this regard, about the rent having been paid, or to be not due. Thus, the finding on issue no. 3 was also confirmed. Then comes the crucial question, which is issue no. 4. It was contended before the learned 10 lower Appellate Court by the plaintiff, that the learned trial court has committed material error in deciding question of reasonable and bonafide necessity, while the defendant cannot dictate the plaintiff to limit his needs, or carry on particular business in a particular place, the landlord is the best judge of his requirement. It was also contended, that mere fact that the plaintiff's another son Anil Kumar sold away some shop during pendency of the suit, it cannot be said that the requirement is not reasonable and bonafide, and that the learned trial court has assumed the other premises to be vacant, while no other premises for computer work were available, as in the residential accommodation the room is being used as drawing room, and there is no other room in the house to be used as drawing room, and Chobara, which are on the upper storey, are also containing goods of STD PCO, but these aspects have not been considered, and arbitrary discussion has been made. The defendant however supported the findings on this issue. Learned lower Appellate Court found, that the legal proposition, as emerging to have been propounded in the various judgments cited on behalf of the parties is, that the landlord is the best judge of his requirement, court or the tenant cannot dictate the landlord to limit his requirement, or to use, or to limit the requirement in a particular manner, or to carry on the business in particular premises, rather the landlord has been given absolute freedom in this regard. Relying upon this 11 principle, which in my view, does not suffer from any error, and as a legal proposition, which has not been assailed either, the learned lower Appellate Court proceeded to examine, as to whether the bonafide necessity claimed is reasonable and bonafide, or mere wish or desire, and then, examining the evidence led on the side of the parties in detail, found, that the conclusions arrived at by the learned trial court are not in accordance with the facts, law and evidence produced on record, and are required to be set aside. It was considered, that when the law confers full freedom on the landlord, the plaintiff's evidence was required to be viewed in a positive way, and not in negative way, and not by taking up the evidence, picking it up from here and there. Then, the reasonings given by the learned trial court were considered at page-24 onwards, and were found to be not sustainable. With this, firstly aspect of their requirement was considered, then the aspect of availability of other accommodation, as considered by the learned trial court was considered, and was found to be not sustainable. Then, suitability of other premises, which were shown to be available, and the factum of availability, was also considered, and it was found, that the conclusions arrived at by the learned trial court are unsustainable, and the plaintiff has established her reasonable and bonafide requirement. Thus, the issue was decided in favour of the plaintiff. Then, findings on issue no. 5 were not challenged. Then, issue no. 6, relating to 12 comparative hardship was also considered, and the findings were reversed. In the result the appeal was allowed, and decree for eviction was also passed, while maintaining the decree for arrears or rent. Assailing the impugned judgment and decree long drawn arguments were made, inasmuch as the matter was argued on 18.9.2006, 17.10.2006, and lastly on 19.9.2007. On 18.9.2006, the arguments mainly comprised of familiarizing the Court with the facts of the case. Then, on 17.10.2006, it was submitted, that the appellant has filed an application under O. 7 Rule 7, contending that the husband of the plaintiff had died in July 2004. Thus, alternative accommodation has become available to the plaintiff to satisfy the requirement. It was also pleaded, that above the said Bakshi Computer Centre, first floor is also vacant, which the heirs of Ramjidas (husband of the plaintiff) want to let out, for which they have put a sign board. Thus, on account of this subsequent event the requirement stands satisfied, and that, in view of the subsequent events, the decree is liable to be set aside. It was then contended that the notice Ex.-2 has not been proved in accordance with law, more so in accordance with Section 67 of the Evidence Act, as Chunnilal has not been produced to prove his signatures thereon. It was next submitted, that according to Section 109 of the Transfer of Property Act, transferee, in the absence of a contract to 13 contrary, steps into shoes of the lessor, but then, a legal and valid transfer is a sine qua non for this purpose. Reliance was placed on Full Bench judgment of Allahabad High Court, in Jitan Tamboli Vs. Namko & Ors., reported in AIR 1922 Allahabad 45. It was contended that in the present case the document of transfer, being Ex.-1, has been found by both the learned courts below to be inadmissible in evidence, and there being no other evidence to show any valid transfer of the premises, the plaintiff does not get any right in the property, so as to bring about the relationship of landlord and tenant between the parties. It was contended that the premises were let out to the defendant by Chunnilal, while the land has been claimed to be of Saroj Kumari, but neither of these two have appeared to prove. Then some case law was cited, about the parameters for judging the reasonable and bonafide necessity. Then, on 19.9.2007 when the matter was again argued full dressed, it was contended, that the definition of landlord includes a person who is entitled to receive the rent, or who collects rent. In the present case the rent was collected by Chunnilal, and Chunnilal has not transferred the premises to the plaintiff, while Saroj Kumari, who is alleged to have transferred the premises, also has not been produced, therefore, the relationship of landlord and tenant was not established. It was in the 14 alternative submitted, that in view of the fact that the transfer is not established, on account of Ex. 1 being not found admissible in evidence, the notice, at best, may have the effect of rendering the plaintiff to be rent collector, but then the suit for eviction cannot be filed on the ground of reasonable and bonafide necessity of rent collector. It was also contended, that mere giving of notice by Chunnilal, and plaintiff, does not bring about tenancy, as it does not create any lease even under Section 107 of the Transfer of Property Act. The next submission advanced was, that the learned trial court had negatived the reasonable and bonafide necessity, and the learned Appellate Court did not meet the reasons given by the learned trial court. The learned lower Appellate Court has examined the matter over again, as if it were itself the trial court, and arrived at its own conclusion, while that is not the permissible scope of the power of the Appellate Court under Order 41 Rule 31. The learned lower Appellate Court was required to find, as to how the reasonings and the findings of the learned trial court are wrong, and did not have the jurisdiction to interfere with the finding of the trial court, simply because, on the appreciation of the same evidence, the Appellate Court has been able to come to a different conclusion of fact. Reliance in this regard was placed on the judgment of Hon'ble the Supreme Court, in Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., reported in AIR (38) 1951 SC-120, and S.V.R. 15 Mudaliar & Ors. Vs. Mrs. Rajabu F. Buhari & Ors., reported in AIR 1995 SC-1607. Then it was also argued, that the husband of the plaintiff has died, and therefore, the vacant shop is available, and during pendency of the suit the plaintiff had sold the other shop, therefore, the bonafide necessity does not exist, and in this regard cited the judgment of Hon'ble Supreme Court, in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, reported in 2000(1) Apex Court Journal 142 (S.C.), S.J. Ebenezer Vs. Velayudhan & Ors., reported in 1998(1) Apex Court Journal 142 (S.C.), and in Mohmedrafiz Husenmiya Thakor & Ors. Vs. State of Gujarat, reported in AIR 1997 SC-1520. Then I was taken through the evidence of P.W.1, who has deposed, that the shop was let out by Chunnilal, and Chunnilal had given notice to the defendant, to the effect, that he has sold the rented premises to the plaintiff, while according to the plaint, the premises have been sold by Saroj Kumari, who had not let it out. Interalia with these submissions it was contended, that the appeal involve substantial questions of law, being, as to whether the judgment of the learned lower Appellate Court is contrary to the provisions of Section 96 C.P.C. read with Order 41 Rule 31, Whether the learned courts below were in error in deciding issue no. 2 and 10, and in concluding the existence of relationship of landlord and tenant between the defendant and plaintiff. The other question claimed to be involved was, as to whether the document Ex.-2 is legally proved, and on that basis the 16 relationship of landlord and tenant can be established. Then, regarding issues no.