PRASANTA KUMAR BOSE Vs. MD NURUDDIN

JUDGEMENT

(1.) THIS civil revision-arises out of a judgment and decree dated 8/3/1994 passed by the Assistant District Judge, No. 1, Cachar, Silchar in T.A. No. 44/91 dismissing the appeal and affirming the judgment and decree dated 23/7/1993 passed by the Munsiff No. 3 Silchar in ITS. No. 132/90 decreeing the plaintiff's suit for eviction of the defendant. The opposite party as plaintiff instituted TS No. 132/90 for eviction of the defendant from a house situated within Silchar Municipality on two ground: 1) on the ground of default; (2) that the house was required by the plaintiff i.e. on the ground of bonafide requirement. Both the courts below found that the defendant was not a defaulter. So, the only ground which now survives for consideration is the ground of bonafide requirement. Another point which was raised in the written statement by the defendant is as follows: "That the suit is bad for non-joinder of necessary parties. The plaintiff alone has no locus stand to file this suit All the heirs of late Ismail Mia, Ibrahim Mia and brother and sister of the plaintiff are necessary parties in this suit. In the absence of whom the plaintiff is not entitled to get any relief All the-heirs of late Nepal Chandra Bose are necessary parties in this suit." "this suit without impleading the heirs of late Nepal Chandra Bose as parties in this suit. The suit of this present nature is not maintainable." THIS point of non-joinder was also found by the courts below in favour of the plaintiff. The pleadings regarding bonafide requirement is mentioned in para, 2 of the plaint. A portion of which is quoted below:

(2.) AT the extreme left there is a private path of around 4 ft. width. AT the extreme end of the path just below the stair case the plaintiff occupies an area of 2 ft 2 inch x 6 ft. and carried on his cassette business under the name: and style of 'Jitu Music Centre.' " PW 1 Md. Nuruddin deposed that for want of space he is continuing his business on the road. But the local irrspection which has been quoted above will show that he was running his business just below the stair case. So the evidence of PW 1 that for want of space he is continuing his business on the road is not correct and except this there is no evidence regarding the bonafide requirement. In the evidence of DW 1 this plea of bonafide requirement of the plaintiff was denied. So, the courts below did not consider the evidence and this finding of bonafide requirement appeal's to be based on conjecture and surmise and is not a finding in the eye of law. Regarding subsequent events as quoted in the revision application, it is crystal clear that the plaintiff got the possession of a room, but that was let- out to another person and this fact which was brought to the notice of this court has not been denied by the landlord. Accordingly I find that as on today the bonafide requirement as pleaded by the landlord does not exist and no decree can be passed on that ground. For the reasons stated above, the decree passed by the courts below on the ground of bonafide requirement shall stand quashed and the suit shall stand dismissed. As I am deciding the matter on this ground of bonafide requirement, there is no need to decide the other question of non-joinder as urged by Mr. Goswami and I am not interferring with that findings arrived at by the trial court and affirmed by the learned appellate court i nasmuch as I am satisfied that basically these are finding of fact and I am not inclined to interfere with that finding of fact. This revision application is accordingly allowed and the impugned judgment and decrees passed by the courts below are quashed and the suit, that is TS 132/90 in the court of Munsiff No. 3 Silchar shall stand dismissed.