CHOTUMAL BAHIRAMAL SINDHO Vs. BABURAO VINAYAK MOHADKAR

JUDGEMENT

(1.) This Judgment will dispose of both the Writ Petitions, which are directed against the self-same Judgment and Decree passed by the 5th Additional District Judge, Nasik dated 12th October, 1993 in Civil Appeal No. 333 of 1989, allowing the Appeal preferred by the landlord and setting aside the order passed by the trial Court dismissing the suit and instead ordering delivery of vacant possession of Eastern portion of the suit property admeasuring 6 ft. x 10 ft. to the landlord within three months from the date of the order with further consequential directions.

(2.) The former Writ Petition is filed by the tenant, whereas the later by the landlord. The tenant has questioned the correctness of the finding recorded on the issue of bona fide and reasonable requirement of the landlord and also on the issue of comparative hardship and of ordering partial eviction from the suit premises. On the other hand, the landlord has challenged the finding on the issue of comparative hardship and the decree for possession limited to partial eviction and not for the whole of the suit premises.

(3.) The landlord filed suit for possession before the Civil Judge, Junior Division, Nasik being RCS No. 110 of 1981 in respect of the Municipal House No. 1414B situated on Bhadrakali Road, Nasik upon CTS No. 2028B, which is a shop premises consisting of three Khans. The relief of possession was claimed on diverse grounds. However, in the present Petitions, filed by the landlord as well as the tenant, the only ground for possession that needs to be addressed is bona fide and reasonable requirement of the landlord and that of comparative hardship and partial eviction. In the context of these issues, in paragraph-6 of the plaint, the landlord has asserted that he was engaged in goldsmith business. He has four sons who have become major. The eldest son is Dattatraya aged 32 years, who is in service. Second son Jaywant, about 30 years. Third son Yashwant is of 26 years. Both these sons were unemployed and were extending help to the landlord in his goldsmith business. He has stated that his first three sons have been married. It is then stated that the plaintiff has only one shop in his possession, which can be used by him for his business. It is then stated that in the western side of the said shop, there is one staircase for going upstairs and beneath that staircase there is very little space, which is not useful for the shop. It is further stated that his youngest son was doing business in the shop which was in his possession. His son uses the space below the staircase for putting up Bhatti and also stores his business items. The landlord has asserted that the area available with the landlord was not sufficient for his business and he was also using gallery attached to his residence on the second floor for his business activities. He has then stated that now the business of goldsmith does not yield good returns and also because his sons Jaywant and Yashwant have no interest in the goldsmith business, it has become necessary for him to think of increasing his income. Moreover, keeping in mind the future of his two sons and to give them sufficient independence and also keeping in mind the arrangement in the family so that no disputes would arise between the family members after they are independent, it has therefore, become necessary to provide them means of income. It is then stated that his third son Yashwant was also married and has children. It is further stated that as there is no independent sufficient income from his business, there is quarrel between the female family members. For that reason, the second son of landlord intends to start his independent stationery business for which he would require the shop premises. It is then stated that the third son has qualified up to B.A., but is without any job and the degree has no value so as to secure good employment. Moreover, the said son has no desire to take up any employment. Besides, keeping in view his age, it may not be possible to get employment. For all these reasons, he intends to start independent cloth business. It is then stated that for the needs of both the sons to start their independent business, the plaintiff has enough capital arrangement and is willing to take loan from the bank if required. For all these reasons, the plaintiffs asserted that the suit premises are bona fide and reasonably required urgently by the plaintiff for his use and occupation as well as for the use and occupation of the members of his family. It is further stated that if the possession of the suit premises is not given to the plaintiff, he and his family members would suffer irreparable hardship. Indeed, the tenant by filing Written Statement disputed the correctness of the stand taken by the plaintiff. During the trial, the plaintiff entered the witness box and deposed about the need of the suit shop being bona fide and reasonable. As can be discerned from paragraph-4 of the examination-in-chief, he has reiterated the case made out in the plaint regarding bona fide and reasonable requirement. In his evidence, he has disclosed the area in possession of his son under the staircase from where he was conducting his business, which is only 3 ft. x 8 ft. He has deposed that the space available under the staircase is not sufficient for even doing his business. He has stated that income from his business was not sufficient to meet his house expenditure for which he intends to allow Yashwant to start cloth business and Jaywant cutlery business independently to have their own income and expenses separately. He has stated that his sons do not have space for starting their separate business. Therefore, they are in bona fide need of the suit shop.