S.B.Civil Second Appeal No.387/07 – L.Rs of Jagannath vs. Smt. Dropadi Devi Judgment dt:4/9/08 1/4 S.B.CIVIL SECOND APPEAL NO. 387/2007 DATE OF JUDGMENT : 4/9/2008 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Sajjan Singh, for the appellants. 1. This second appeal has been filed by defendant-appellants tenants being aggrieved of the concurrent findings of two courts below in an eviction matter. 2. The First Appellate Court by its judgment and decree of eviction dt.10/11/2006 dismissed the defendants' appeal no.38/94 and affirmed the judgment and decree of learned trial court dt.30/5/1987 in suit no.25/83 filed by plaintiff respondent Smt. Dropadi Devi w/o Shri Mahaveer Prasad. 3. The suit filed for eviction has been decreed by both the courts below on the ground of bonafide necessity, subletting and material alteration. 4. Learned counsel for the appellant defendants Mr. Sajjan Singh submitted that the courts below have not appreciated the evidence S.B.Civil Second Appeal No.387/07 – L.Rs of Jagannath vs. Smt. Dropadi Devi Judgment dt:4/9/08 2/4 properly and no case of sub-letting was made out inasmuch as the alleged sub-lettee Mr. Doongarmal, who was running a weigh-bridge over the disputed premises was employee of original tenant Jagannath and he never paid any rent to Jagannath and, therefore, no case of subletting was established before the trial court. On the ground of personal bonafide necessity of the plaintiff-respondent also, he submitted that respondent plaintiff used to live for the part of the period in Bombay and part of the period at Sujangarh, where the suit premises are situated and, therefore, she had no personal bonafide necessity of the suit premises. 5. Having heard learned counsel and upon perusal of the impugned judgment of courts below, this Court is satisfied that no substantial question of law arises in the present second appeal for determination under Section 100 CPC. 6. Both the courts below on proper appreciation of evidence have returned the concurrent findings of facts about the bonafide necessity of the plaintiff respondent as also of subletting and material alteration. The Courts below have found that after the death of her husband Mahaveer Prasad, the plaintiff respondent needed the suit S.B.Civil Second Appeal No.387/07 – L.Rs of Jagannath vs. Smt. Dropadi Devi Judgment dt:4/9/08 3/4 premises `Nohra' measuring 575 sq.yds. for running her own flour mill and godown for keeping agricultural waste like pala, wood etc. and there was no other source of livelihood and her son was studying outside. It is well settled that bonafide necessity as on the date of filing suit has to be examined by the courts below in the eviction matters and this Courts finds that both the courts below clearly found that bonafide necessity was established by the respondent plaintiff. As far as subletting is concerned, the courts below have found that defendants failed to establish that the original tenant Jagannath had any control over the business of weigh bridge, which was being run of Doongarmal (D.W.5), therefore, case of subletting was also established by the plaintiff respondent. 7. In the opinion of this Court, all these are findings of facts based on relevant evidence and there is neither any misreading of evidence nor they can be said to be perverse in any manner. Therefore, in the opinion of this Court, no substantial question of law arises in the present second appeal and the same is found to be devoid of merit and is accordingly dismissed. 8. The appellant defendants shall handover the vacant possession S.B.Civil Second Appeal No.387/07 – L.Rs of Jagannath vs. Smt. Dropadi Devi Judgment dt:4/9/08 4/4 of the suit premises in question to plaintiff respondent within a period of six months from today and shall also pay mesne profits in the meanwhile at the rate of Rs.5000/- per month commencing from September, 2008 which shall be payable before 15 of the month concerned to the plaintiff and same may either be deposited with the trial court or may be paid in bank account of the plaintiff respondent, if number of such account is furnished by the plaintiff respondent to the appellant defendants. The appellant defendants shall also clear the arrears of rent/mesne profit, if any, in accordance with the orders of learned courts below within a period of two months from today. If there is any non-compliance in payment of arrears of rent or mesne profit as directed, the decree shall become executable immediately. No order as to costs. (DR.VINEET KOTHARI), J item no.22 baweja/-