SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 1/11 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.312/2006 Jamna Lal S/O Ogad Ji Suthar versus 1. Prajendra Nahar S/O late Sh. Daulat Singh 2. Azad Nahar S/O late Sh. Daulat Singh PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.D.R.Bhandari, for the appellant Mr.A.K. Rajvanshy, for the respondents. REPORTABLE DATE OF JUDGMENT : 2nd February, 2009. JUDGMENT 1. This second appeal under section 100 C.P.C. has been filed by the defendant – tenant being aggrieved by the judgment and decree of eviction by the first appellate Court while allowing the plaintiff's appeal No.57/2001 on 8.2.2006 reversing the judgment of the trial Court dated 13.2.2001 whereby the learned trial Court rejected the SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 2/11 suit for eviction filed by the plaintiff on the ground of arrears, bonafide necessity of the plaintiff – landlord and also denial of title. 2. The first appellate court in the impugned judgment dated 8.2.2006 has clearly found that the suit premises, namley, 60 x 40 ft. plot of land situated at plot No.8, Boharwadi, Udaipur was given by way of a Will executed by father Sh. Daulat Singh, erstwhile landlord in favour of the present plaintiffs his two sons Prajendra Nahar and Azad Nahar and the said Will was duly proved by one of the attesting witnesses, Mr. O.P. Khabia, P.W.2 the son-in-law of testator Daulat Singh before the learned trial Court in accordance with Section 68 of the Indian Evidence ct, 1872 and the defendant – appellant failed to ask any question in cross-examination to the said P.W.2 demolishing his deposition and on the contrary D.W.1 Jamna Lal tenant himself admitted the signatures of said Daulat Singh on Ex.1 Will and therefore, the learned appellate Court upheld the right of the plaintiffs – respondents to file th suit for evicdtion on the basis of said Will and decreed the suit on the ground of personal bonafide necessity of the plaintiffs- landlords, who wanted to construct their residential house on the said plot of land. SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 3/11 3. Mr. D.R. Bhandari, learned counsel appearing for the appellant - tenant submitted that the Will in question was not properly executed in accordance with Section 63 of the Indian Succession Act, 1925 which requires attestation of a Will by two or more witnesses and since two witnesses did not appear before the learned trial Court proving the said Will, the learned appellate court has erred in reversing the judgment of the learned trial Court which rejected the suit inter alia on the ground of denial of title by the defendants. He further submitted that the bonafide need of the respondents – plaintiffs was also not established before the learned trial court as mere desire of the landlords to evict the tenant is not sufficient and bonafide need should be objectively established before the Court below. He submitted that the learned trial Court was justified in rejecting the suit on both the counts, whereas the learned first appellate Court has reversed the said findings without any valid reasons and therefore, the present second appeal deserves to be admitted and allowed by this Court. SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 4/11 4. He relied upon following judgments in support of his submission: i) Kashi Bai V/s Parwati Bai – (1995) 6 SCC 213 in which the Hon'ble Supreme Court held that “ In the present case it was found by the trial Court that none of the witnesses to the Will had deposed that the deceased testator had signed the will before them and that they had attested it.” This case is clearly distinguishable from the facts of the present case as one of the attesting witnesses, P.W.2 Om Prakash Khabia, son-in-law of testator Daulat Singh had clearly proved the said will before the learned trial Court and that has been accepted by the first appellate Court as duly proved in accordance with Section 68 of the Indian Evidence Act which clearly provides that if a document is required be law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the prupose of proving its execution. Admittedly one of the attesting witnesses P.W.2 Om Prakash Khabia has proved the said Will and the defendant – appellant failed to demolish the said deposition in his cross- SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 5/11 examination in any manner. Moreover, it may be stated here that question of title is not relevant in rent control and eviction matters. It is well settled legal position of law and therefore, if the landlord- tenant relationship was held to be established on the basis of a Will being proved by P.W.2 Om Prakash Khabia, this Court finds nothing wrong in it. 5. Mr. D.R. Bhandari also relied upon this Court's decision in the case of Shivbrat Lal V/s Ahsan Ali - 1982 (1) All India Rent Control Journal 752 in which it was held that if there is more than one owner of the premises in question, all co-owners are required to file a suit for eviction. This case is also of no avail to the appellant – defendant in as much as both the plaintiffs who got right in respect of the said plot of land in question under a Will executed by their father have filed the suit for eviction in question. There is no dispute raised by any other brother in regard to the will in question before the Courts below. It has been held by the Hon'ble Supreme Court in the case of Mahendra Raghunathdas Gupta V/s Vishvanath Bhikaji Mogul SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 6/11 and ors. - 1997(2) Apex Court Journal 10 (S.C.). that attornment in favour of the transferee of the landlord's right is automatic and attornment by the tenant is not necessary to confer the validity of transfer of landlord's right. Following the said judgment of the Hon'ble Supreme Court, this Court, this Court, in the case of Ram Saran Sharma V/s Smt. Kamla Acharya – 2001(2) WLC (Raj.) 565 held that the transferee of the lessor steps into the shoes and possess all the rights which the transferor has and the attornment is not a condition precedent and once the title of the assignee is complete, the attornment is automatic not dependent on the tenant's attorning or agreeing to the attornment. 6. Further reliance placed by the learned counsel for the appelalnt – defendant in the case of Rajgopal V/s Kishan Gopal – 2003 AIR (SCW) 4986 (Head note “C”) to the effect that there was no pleadings in regard to the said Will and therefore, the question could not be gone into by the Courts below is also not tenable as in the present case, not only there are pleadings to this effect as to how the plaintiffs got right to sue for eviction of the present defendant, but Will in SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 7/11 question was also held to be proved by the learned appellate Court below and rightly so, in the opinion of this Court. 7. The other judgments relied upon by the learned counsel for the appellant – defendant about the bonafide need of the landlords to be not a mere desire or whims are also of little help to the appellant – defendant inasmuch as the plaintiffs in the present case have clearly proved that the plot of land in question was required by them to construct their own residential houise and in the opinion of this Court, this finding of fact by the first appellate Court based on relevant evidence does not give rise to any substantial question of law for consideration by this Court under Section 100 C.P.C. 8. On the side opposite Mr. A.K. Rajvanshy, learned counsel appearing for the plaintiffs – respondents drew the attention of the Court towards para 9 of the appellate court's judgment wherein the learned appellate Court has clearly given a finding of fact in favour of the plaintiffs – respondents as to how the Will in question was proved by P.W.2 Om Prakash Khabia, son-in-law of testator Sh. Daulat Singh and despite detailed cross-examination by the SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 8/11 defendant, he failed to ask any question about the Will to said P.W.2 Om Prakash Khabia and on the contrary D.W.1 Jamna Lal tenant himself admitted that he recognizes signatures of said testator Daulat Singh and on the Ex.1 Will, his signatures A to B were appended. In view of this, the learned counsel for the respondents submitted that no question arises at this stage to challenge execution or attestation of the Will and he submitted that no substantial question of law arises in the present case. As far as bonafide need of the present plaintiffs – respondents is concerned, the plaintiffs badly needed the said plot of land for construction of their own residential house. The suit was filed way back in the year 1997. Even by now their need has not been satisfied in view of pendency of this second appeal, whereas the defendant has constructed his own show-room and is using the present plot of land in question only for keeping his wooden stock. He submitted that the findings of fact arrived at by the learned first appellate Court about the bonafide need do not call for any interference in the present second appeal. 9. Having heard the learned counsel and upon perusal of the judgments of two Courts below and the judgments cited at the bar as SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 9/11 discussed above, this Court is of the considered opinion that no substantial question of law arises in the present second appeal for determination by this Court. The Will in question was rightly proved by one of the attesting witnesses in accordance with Section 68 of the Indian Evidence Act and that was sufficient to establish landlord – tenant relationship between the plaintiffs and the defendant – tenant and it has been rightly held by the first appellate Court that denial of title by the defendant on the said ground was unjustified and it was a ground for eviction established against the defendant – appellant. As far as bonafide need of the plaintiff – respondent is concerned, there is no force in the submissions made by the learned counsel for the appellant – defendant that the said need was not bonafide or was not established before the Courts below and was mere whims or desire of the landlords. It is well settled by a catena of judgments of Apex Court as well as this Court that the landlord is the best judge for adjustment of his need and it is not for the tenant to dictate the terms in this regard. SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 10/11 10. Consequently, this Court finds no force in the present second appeal and the same is accordingly dismissed with costs which are quantified at Rs.2000/-. 11. The appellant – defendant shall handover vacant and peaceful possession of the suit premises to the respondents - plaintiffs, within a period of two months from today. The appellant – defendant shall also pay arrears of rent and mesne profits if any within two months and shall pay further enhanced mesne profit of Rs.1000/- per month to them with effect from February, 2009 payable every month before 15th of succeeding month till the actual handing over of the vacant and peaceful possession of the suit property to the respondents - landlords. The decree be made accordingly. If the appellant – defendant fails to handover vacant and peaceful possession of the suit property to the respondents - plaintiffs within a period of two months from today as aforesaid or fails to pay mesne profit including the arrears of rent and mesne profit as directed above, the plaintiffs – respondents shall not only be entitled to seek execution of the decree in normal course, but the appellant – defendant may also render himself liable for action under the contempt law. SBC SECOND APPEAL NO.312/2006 –JAMNA LAL V/S PRAJENDRA NAHAR AND ANOTHER : JUDGMENT DTD. 2.2.2009 11/11 (Dr.VINEET KOTHARI)J. Ss/-