STATE OF RAJASTHAN Vs. KANTILAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed by learned Civil Judge, Udaipur in case No. 62 of 1990 dated 15.4.1991 whereby he has confirmed the judgment and decree of learned Munsif and Judicial Magistrate, Udaipur dated 20.6.1990 in civil suit No. 285 of 1991.

(2.) BRIEFLY stated the facts of this case are that the defendant-appellant is in possession of the disputed premises as a tenant since long. It was alleged that the respondent had purchased a part of 'Shivrati House' (described in para 1 of the plaint) by a registered sale-deed from one Bhim Singh. A notice dated 24.9.1980 was issued informing the Education Department of the fact that he has become the owner by purchasing the disputed house for his own use. Thereafter on 6.10.1980, another notice that due rent from 6.9.1980 to 6.4.1981 is not paid and to vacate the house within two months as the house is required for his own use but it was of no avail. Thus, the plaintiff-respondent filed a suit on the ground of default as rent has not been paid for more than six months and in case the suit premises is not vacated he will suffer greater hardship as house in which he is residing is only of one room with kitchen and it is not sufficient. On the pleadings of the parties, the learned trial Court framed as many as 6 issues. The plaintiff examined PW1 Kantilal and PW2 Keshulal. The defendant has examined DW Uma Chaturvedi in support of its case. The learned trial Court after hearing both the parties and after considering material on record decreed the suit on the grounds of default and personal and bonafide necessity. Aggrieved by this the defendant preferred an appeal but the same was dismissed on 15.4.1991. However, 3 months' time was granted to vacate the premises as girls' school was running. Hence, the Department has filed this second appeal.

(3.) MR . Khatri has submitted that no decree for partial eviction could be passed in the instant case. He has submitted that as the appellant has not raised this point either in the written statement or before the learned trial Court or before the first Appellate Court, therefore, this argument should be deemed to have been abandoned by the defendant and now it is not open for him to canvass this point. He has placed reliance on Narsingh Das v. Jethmal, 1988(1) WLN 677. He has also submitted that the Courts below while considering issue No. 1 have considered this aspect as the appellant has failed to adduce any evidence that the respondent was in possession of any other premises than the purchased one the suit premises and the appellant has also not been able to establish that he will suffer hardship in comparison to the respondent who is residing in only one room having six members in the family, therefore, it will be a futile exercise to send the case in view of Rajkumar and another v. Mehar Chand, 1990(2) RLR 731, and a decision of this Court in Brij Mohan and another v. Hargun Das, SBC Second Appeal No. 139 of 1991, decided on 17.3.1992. He has further submitted that the Courts below have passed a decree on the ground of personal and bonafide necessity in addition to ground of default, so it is not necessary to consider the question of partial eviction as provided in Section 14(2) of the Act. He has placed reliance on Inder Chand v. Smt. Lilawati, 1990(2) WLN 385.