MOHAMMAD ABDUL MAJID KHAN Vs. H.K. SOOD

JUDGEMENT

(1.) In this appeal by the plaintiff-landlord against the dismissal of his suit claiming ejectment of the respondent-tenant from the residential accommodation at Raipur on the ground that it was required bona fide for residence, the following question of law, which alone now survives for decision, was framed at the time of admission of this appeal :

(2.) The plaintiff is a retired Deputy Conservator of Forests. He has purchased some land at Keskal and has his cultivation there. He has three sons besides grand-children. The eldest son has no occupation, the second is a Ranger while the third is a teacher at Keskal. The plaintiff purchased the suit house on 12-2-1970. Admittedly, he has no other house of his own at Raipur. After the expiry of one year of the purchase' he filed the suit claiming ejectment on the ground that the house in question was required bonafide for his residence as also the residence of members of his family. The claim was denied, issues were framed and the trial Court upheld the contention that the suit house was so required. Consequently. the suit for eviction of the respondent was decreed. The respondent appealed. The lower appellate Court, however, allowed the appeal and dismissed, the suit negativing the need for the appellant for residence. In so doing, it has expressed that since the appellant is getting a meagre sum of Rs. 350.00 as pension, he will not be able to afford the costly living at Raipur, that lie has purchased land at Keskal and may not like to leave that cultivation which is yielding income for his livelihood, that the purpose of his shifting to Raipur is not stated in the pleadings and that the vendor was not questioned as to the purpose of the purchase of the suit house by the appellant. To those reasons, the learned counsel for the respondent added that the plaintiff was playing hide and seek at all stages of the suit and that his place of residence in the plaint was stated to be Byron Bazar, Raipur, while in fact he has no cause at Raipur other than the suit house. The pleadings were said to be deliberately vague as no need of any particular person was specified and thus the appellant was accused of suppressing the real information. It was said that the son for whose need the house was required was not examined. Ultimately, the learned counsel for the respondent submitted that the lower appellate Court had reached a finding of fact as to the non-existence of the need for the house by the appellant and that finding cannot be disturbed in second appeal.

(3.) After hearing the learned counsel for the parties, I have formed the opinion that this must be allowed. The trial Court after considering the entire evidence on record has come to the conclusion that the plaintiff-appellant needed the house in question for his residence as also for the residence of his sons and grand children. 'The lower appellate Court has reversed this finding on grounds which are not germane. That the appellant will not be able to maintain himself at Raipur, which is far from being correct, is a wholly irrelevant consideration. In paragraphs 1 and 5 of the written statement, the respondent himself has stated that the appellant is a wealthy man. The lower appellate Court has lost sight of this plea. No doubt, the appellant has purchased land at Keskal at the verge of his retirement. He also did cultivation there. His grand children have now grown. They need education. The appellant, therefore is right in saying that he is required to shift to Raipur for welfare of those children and for that purpose the house in question was purchased. The criticism that all this was not pleaded in the plaint cannot now be advanced at this stage of second appeal because the respondent himself is guilty of not asking for more specific statements in the plaint at the trial stage. The appellant did plead necessary facts leading to the framing of relevant issues. Evidence was let in without objection. It is, therefore, too late in the day to complain of want of pleadings. The purpose of the purchase of the house has to be stated by the plaintiff-appellant and not by his vendor. If, however, the respondent thought that the vendor could have stated it, a question in that behalf could well have been put to the vendor when he entered the witness-box. The respondent did not do so. I am also not prepared to hold that the appellant was playing hide and seek. The address given in the cause-title was only for the purpose of service of notice by the Court. The plaintiff himself has clearly stated at all stages in the trial Court that he has no other house of his own at Raipur. He even did not state that he was living in any other house at Raipur. Similarly, if the respondent thought that some specific plea was necessary or more information was required, he should have been vigilant enough at the stage of trial. Having lost that opportunity, he cannot now be heard to make a grievance of any vagueness in the pleadings.