UDA RAM Vs. PYARE LAL

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiff-appellant against the judgment and decree dated 21. 11. 1990 passed by the learned Additional District Judge, Bikaner in Civil Appeal No. 70/85 by which he dismissed the appeal of the plaintiff-appellant and affirmed the judgment and decree dated 19. 9. 19984 passed the learned Addl. Munsiff No. 1 Bikaner in original civil suit No. 103/77 (367/74) by which the suit of the plaintiff-appellant for eviction of the defendant - respondent from the suit premises (shop) on the ground of reasonable & bonafide necessity as envisaged under Section 13 (1) (h) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act of 1950"), was dismissed.

(2.) IT arises in the following circumstances: The plaintiff-appellant filed the suit on 18. 11. 1974, later-on the plaint was amended on 15. 11. 1976 through which para 4 (A) was added and, thereafter, the plaint was further amended on 30. 3. 1983 by which another para 4 (B) was added, inter-alia stating that there is a shop of the plaintiff-appellant situated in Guru Nank Market, Bikaner, the details of which are mentioned in para no. 1 of the plaint and the area of the shop as stated by the plaintiff-appellant himself in his statement recorded as PW 1 on 24. 5. 1986 is 5 foot length, 3-3-1/2 foot width and 8 feet height. The shop in question was given by the plaintiff appellant to the defendant respondent on monthly rent of Rs. 40/- and later on, the rent was increased from Rs. 40 to Rs. 45/- and then to Rs. 50/- per month. The case of the plaintiff-appellant as put forward in the original plaint dated 18. 11. 1974 for reasonable and bonafide necessity was that at present the plaintiff appellant was doing nothing and he wanted to sell shoes and market in which the shop in question was situated is famous for selling shoes and therefore, the shop in question was needed by the plaintiff- appellant and his family members reasonably and bonafidely and eviction of the defendant-respondent form the shop in question was sought by the plaintiff-appellant on the ground of reasonable and bonafide necessary as envisaged under Section 13 (1) (h) of the Act of 1950. Through amendment dated 15. 11. 1976, the plaintiff-appellant added para 4 (A) in the plaint stating that the defendant-respondent used to deal in the business of Manihari and the shops of Manihari were situated in the Manihari Market and the defendant- respondent could easily search out the shop in that market and, therefore, in case the shop in question was not vacated by the defendant- respondent, the plaintiff-appellant would be put to more hardship than the tenant-defendant-respondent. Through amendment dated 30. 3. 1983, the plaintiff-appellant further added para 4 (B) in the plaint stating that the father of the defendant-respondent died on 3. 9. 1982 and since defendant- respondent was refugee and in rehabilitation, one shop bearing No. 20b situated in Guru Nank Market, Bikaner was allotted to the father of the defendant-respondent and after the death of the father of the defendant-respondent, that shop fell in the share of the defendant-respondent and the became owner of that shop and, thus, since the defendant-respondent has got alternative accommodation, therefore, from this point of view also, the need to the plaintiff-appellant was more severe. Hence, suit for eviction of the defendant-respondent from the shop in question. The suit of the plaintiff-appellant was contested by the defendant-respondent by filing a written statement on 28. 5. 1975, which was amended on 24. 1. 1977 and on 15. 4. 1983 and the case of the plaintiff-appellant for reasonable and bonafide necessity was denied by the defendant-respondent. IT was further asserted by the defendant-respondent that the market where the disputed shop is situated is famous for Manihari shops and not for the purpose of selling shoes. IT was further asserted by the defendant- respondent that the plaintiff-appellant also had got many agricultural land and he cultivates land and by that the earns money and therefore, to say that the shop in question was needed by the plaintiff-appellant for doing business of shoes is wholly incorrect. So far as the averment that the father of the defendant-respondent got one shop bearing No. 20b many years back in concerned, it was asserted by the defendant-respondent that the said shop was sold by his father during his life time and, therefore, if he is evicted from the shop in question, he would be put to more hardship than the plaintiff-appellant. Hence, it was prayed that the suit of the plaintiff-appellant be dismissed. On the pleadings of the parties, the learned Addl. Munsiff No. 1, Bikaner framed the following issues on 18. 3. 1977:- Thereafter, on 8. 2. 1986, one more issue was added as issue No. 5, which is quoted below:- Thereafter, both parties led evidence in support of their respective cases. IT may be stated here that in this case, the plaintiff-appellant was examined as PW 1 thrice first on 10. 5. 1978, later-on, on 29. 9. 1983 and then on 24. 9. 1986. The defendant-respondent was also examined as DW1 twice on 25. 1. 1982 and 13. 3. 1984. After recording evidence of both the parties and after hearing both the parties, the learned Addl. Munsiff No. 1, Bikaner through his judgment and decree dated 19. 9. 1984 dismissed the suit of the plaintiff-appellant. The learned Addl. Munsiff No. 1, Bikaner decided the issue No. 1 against the plaintiff-appellant holding inter-alia:- (1) That the plaintiff-appellant had agricultural land. (2) That the plaintiff-appellant also earns money by playing his bus operated through Roadways on contract basis. (3) That why the shop in question is needed, there is no concrete evidence of the plaintiff-appellant and at the most, the plaintiff-appellant had only desire for opening that shop of shoes, but it is not sufficient for coming to the conclusion that the shop in question was required by the plaintiff-appellant reasonably and bonafidely. The issue No. 2 with regard to comparative hardship was also decided by the learned Addl. Munsiff No. 1, Bikaner against the plaintiff-appellant holding inter-alia that in case the decree of eviction was passed in favour of the plaintiff-appellant, greater hardship would be caused to the defendant-respondent. Aggrieved from the said judgment and decree dated 19. 9. 1984 passed by the learned Addl. Munsiff No. 1, Bikaner, the plaintiff-appellant preferred a first appeal before the learned District Judge, Bikaner, which was later on transferred to the Court of Addl. District Judge, Bikaner and the learned Addl. District Judge, Bikaner through order dated 8. 2. 1986 framed a new issue as issue No. 5 with regard to partial eviction and on the issue, he remanded the case to the learned Addl. Munsiff No. 1, Bikaner with a direction to decide that issue of partial eviction after taking evidence of both parties. Thereafter, the learned Addl. Munsiff No. 1, Bikaner through order dated 30. 7. 1986, decided the issue No. 5 with regard to partial eviction in the manner that since the shop in question is a very small one, therefore, decree of partial eviction cannot be passed. Thereafter, the learned Addl. District Judge, Bikaner through judgment and decree dated 21. 11. 1990 dismissed the appeal of the plaintiff-appellant and affirmed the judgment and decree dated 19. 9. 1984 passed by the learned Addl. Munsiff No. 1 Bikaner holding inter-alia:- (1) That while dismissing the appeal of the plaintiff- appellant, he placed reliance on two decision of this Court; (1) in Radhavallabh vs. Damodardas (1) and (2) Bhagirath vs. Ram Prasad & Anr. (2) That from the statement of plaintiff-appellant recorded as PW1, it has not been established that the shop in question was required by the plaintiff-appellant reasonably and bonafidely. (3) That the plaintiff-appellant in his statement recorded as PW1 has stated that alongwith him, his son Bhanwarlal would also sit in the shop, but PW1 plaintiff-appellant admitted that Bhanwarlal was not his son, but his brother's son and his statement that the had taken Bhanwarlal in adoption was not accepted as no adoption deed was produced. (4) That at the time when the suit was filed by the plaintiff- appellant and when the statements of witnesses were recorded, he was MLA and, thereafter, when he was not MLA, he ought to have amended his plaint before decision of the suit by the Court. (5) That the plaintiff-appellant in his statement recorded as PW 1 has stated that he had a bus bearing No. R. S. B. 6341 in the name of his wife, which was being operated by Roadways on contract basis and now that Bus was not being operated by Roadways, but this fact should have also been amended in plaint. Aggrieved from the said judgment and decree dated 21. 11. 1990 passed by the learned Addl. District Judge, Bikaner, this second appeal has been filed by the plaintiff-appellant.

(3.) BEFORE proceeding further, first it is to be seen whether in second appeal, concurrent findings of fact can be reversed or not or whether there is a total ban that in second appeal concurrent findings of fact can never be disturbed?