TULSI DAS Vs. BINDURBAI DIED

JUDGEMENT

(1.) BY this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short `CPC'), the appellants have challenged the legality and propriety of the judgment & decree dated 23.1.96 passed by the Third Additional Judge to the Court of District Judge, Durg, in Civil Appeal No.8A/95, affirming the judgment & decree of decreeing the suit for eviction of the appellants dated 30.1.1995 passed by the Sixth Civil Judge Class-II, Durg, in Civil Suit No.26-A/91.

(2.) THE present second appeal has been admitted for consideration on 18.4.96 on the following substantial questions of law:-

(3.) LEARNED counsel for the appellants vehemently argued that decree under Section 12 (1) (i) of the Act, 1961 has been granted by both the Courts below on the ground that the respondent has acquired the accommodation. Originally suit was filed against Gurundmal, father of appellants No.1 and 3 and husband of appellant No.2. As per finding of both the Courts below, appellant No.1 has acquired accommodation, but appellant No.2 has not acquired any accommodation, in these circumstances, decree for eviction against appellant No.2 was not possible in the light of decision in the matter of Mohd.Azeem v. District Judge, Aligarh and others reported in AIR 1985 SC 1118. LEARNED counsel further argued that in order to pass the decree for eviction under Section 12 (1) (i) of the Act, 1961, the respondent was under obligation to prove the fact that such accommodation acquired by appellant No.1 was suitable for her residence but the respondent has failed to prove such fact, therefore, decree against appellant No.1 under Section 12 (1) (i) of the Act, 1961 is also not sustainable.