RALFMAT ULLAH KHAN Vs. GANPAT AND ORS.

JUDGEMENT

(1.) Heard.

(2.) The appellant/tenant being aggrieved by the judgment and decree passed by the lower Courts below direction eviction of the appellant has filed this appeal. The contention of Mr. Dhande was that the plaintiffs wanted to sell the property therefore had filed the present suit. He also contended that for the purposes of supporting the business the plaintiff had no funds and even otherwise the plaintiff was in possession of the alternative accommodation. He also submitted that the other premises which were got vacated by the plaintiffs were re-let on higher rent. He also submitted that the application filed under Order 41, Rule 25, Civil Procedure Code for remand of the matter has been wrongly rejected by the first Appellate Court. Replying the above arguments Mr. Gupta contended that the premises were let out for a composite purpose and the plaintiff has clearly established his need for residential and non-residential purpose. It was submitted that there was nothing on record to show or suggest that the plaintiffs wanted to sell the premises, and the other premises were not given on higher rent but in fact under the agreement between the tenant and the plaintiffs part of the premises could be obtained on the onerous condition of the said tenant that part of the premises would be given to a third party. It was also submitted that the defendant' merely raised the plea that the plaintiff wanted to sell the property but there was no legal evidence on record. Regarding funds it was submitted that though availability of the funds is not a condition precedent but in the instant case the plaintiffs have proved that the funds add be made available to plaintiffs Sadashiv another brother. It was also submitted that flotation under Order 41, Rule 25 was as conceived and was rightly rejected. Regarding the availability of the alternative accommodation, it was contended that firstly here was no alternative accommodation and secondly the plaintiff has stated that the premises were needed for residential and non-residential purpose, therefore, any other house which is either residential or non-residential premises was not suitable nor could be treated 10 be alternative accommodation.

(3.) So far as the question of funds is concerned the law is clear that the plaintiff is not required to plead or prove the availability of funds. Successful reliance can be placed on Mattulal Vs. Redhelal, AIR 1974 SC 1596. In the case in hands die plaintiffs have clearly stated that the funds are available with them. It could not be contended that the brothers would not provide funds to Sadashiv. So far as the question of selling of the premises is concerned the defendant has merely stated that one broker had come to see the premises and he himself had asked the broker that if the plaintiffs want to sell the premises then the defendant is ready and willing to purchase it. The said broker was not examined by the defendant which gives a. dent to the reliability of the statement. If the defendant knew that the plaintiffs wanted to sell "the premises then after learning the fact some positive action ought to have been taken by him if he nearly wanted to purchase the premises. The silence on the part of the defendant makes his case unreliable. Regarding the alternative accommodation, the two Courts below have held that the plaintiffs are not possessed of any alternative accommodation. It was contended that the premises which had fallen vacant were let out on enhanced rent. The contention cannot be accepted. The plaintiffs have successfully proved that another tenant had vacated the part of the premises 6n the condition that the residential portion would be given to the plaintiff and the non-residential accommodation should be lei: out to one Vasudev. These circumstances clearly negative the plea of the defendant. Even otherwise when plaintiff Sadashiv seeks eviction on the ground that the premises which were let out for composite purpose are needed for the composite purpose then any other accommodation which is either residential or non-residential would not meet the requirement of the plaintiff.