HEM CHANDRA CHOWDHARY Vs. SARPADHIPESHWAR MISHRA

JUDGEMENT

(1.) This Second Appeal by the landlord appellant is against the concurrent findings of the two courts below dismissing his suit for eviction of the tenant. The plaintiff landlord is an Advocate at Muzaffarpur. The defendant tenant is Homeopath at the same place. The tenant respondent took on lease a portion of the house at a monthly rental of Rs. 95 in the ground floor from the appellant in Mohalla Motijheel in the town of Muzaffarpur. His tenancy commenced about 15 years prior to the filing of the present suit which was filed in 1966. At that time the landlord appellant was occupying the upper floor. He filed the present suit for eviction of the respondent from the portion of the premises in occupation of the respondent on a plea of personal necessity giving five grounds in support of his plea. That he required the lower portion (i) for his blind father and sickly mother who were residing with their at Mohalla Naya Tola for want of sufficient accommodation (ii) for the marriage of his daughter and also on account of increase in the number of the members of the family (iii) for carrying on his profession properly (iv) for remodeling the lower portion of the house in order to bring the same for proper use ; and (v) because the tenant defendant had committed a breach of the terms of the tenancy by damaging the water pipeline. The claim of the plaintiff appellant was opposed by the respondent. All the allegations were denied The respondent contended, inter alia, that the landlord's case of personal necessity was false because the portion of the premises in his occupation contained 11 rooms and the same was sufficient for his purpose.

(2.) The learned Munsif Ist. Muzaffarpur found on the evidence on record that the plaintiff's claim was not correct and that the plaintiff wanted the premises of the defendant only with a view to let out the same to some other person on a higher rent. He, accordingly, dismissed the suit. In appeal the learned Additional Subordinate Judge confirmed his findings and he also held that the plaintiff did not require the portion of the premises in occupation of the defendant for his personal use or accommodation or for his office purposes. He concurred with the Munsif in holding that the main motive of the plaintiff was to re-let the premises in question on a higher rent and that the suit had been filed with mala fide motive. He, therefore, dismissed the appeal. It is quite clear that the two courts below did not accept the evidence of personal necessity. The finding is apparently a finding of fact binding upon this Court in second appeal as held in Ram Lakhan Chou hary v. Raj Narain Sah, 1976 BBCJ 626.

(3.) Mr. S.C.Ghose appearing for the appellant, however, submits that the question relating to the plaintiff's bona fide requirement of the terms is a mixed question of law and fact, as held in Madan Lal Puri v. Sain Das Berry. AIR 1973 Supreme Court 585 and he, therefore, can challenge the correctness of such finding. On the other hand, the learned counsel for the respondent argued that the finding of the lower appellate court on this point is a finding of fact and this court has no jurisdiction to examine the correctness of the finding in Second Appeal. He relied upon the decision in Mattu Lal v. Radhey Lal, (AIR 1974 Supreme Court 1596) which relying upon an earlier decision of the Supreme Court in Sar Vate T.B. v. Nemi Chanel, 1966 MPLJ 26 (SC) held that such a finding on a mixed question of law and fact. My attention was also drawn to another decision of the Supreme Court in Damadi Lal v. Parashram, AIR 1976 Supreme Court 2229 in which an apparent conflict between the two decisions aforesaid was noticed but it was not considered necessary to express any opinion for the purpose of that case. I am of opinion that in the present case also it is not necessary to embark upon an enquiry as to whether the question relating to the bona fide requirement of the landlord is a mixed question of law or fact or purely one of fact. Both, the courts below have fully considered separately each of the grounds given by the landlord appellant in support of the plea of personal necessity and they have rejected the same. There are 11 rooms in the first floor out of which two rooms have been given to others and nine rooms are still in possession of the plaintiff appellant In the ground floor there is a number of shops arid tenants. The appellant is practising as a lawyer for 22 years. From the evidence on record the courts below came to the conclusion that he was a Pleader Commissioner and had practically no practice and that he was keeping his office in upper floor for the last 22 years or so and there was nothing on the record to show that the circumstance had changed. This ground was considered by the trial court in paragraph 26 and by the lower appellate court in paragraph