RAM GOPAL GOYAL Vs. OM PRAKASH DHIR

JUDGEMENT

(1.) THIS is tenant-defendant's second appeal against the judgment and decree of eviction passed against him on the ground of sub-letting under clause (e) of sub-section (1) of section 13 of the Rajasthan Premises (Control of Rent & Eviction Act, 1950 (the Act ). The brief facts are as under :

(2.) THE defendant-appellant Ram Gopal Goyal had taken on rent the house No. 7-Jha-33, Jawahar Nagar, Jaipur from the plaintiff- respondent Om Prakash Dhir at a monthly rent of Rs. 300/- w. e. f 1-6-76, for running a school by the name of Vivekanand Vidhya Niketan therein. Subsequently, the rent of the said house was raised to Rs. 375/-w. e. f 1-8-1978. THE tenanted house included the open land attached to the house in question. THE defendant, with the consent of the plaintiff, constructed a tin-shed thereon. On 2-8-1980, the plaintiff filed a suit against the defendant slating that the house in dispute was bonafide3 required by him and further that the defendant had, without his consent, sub-let a portion thereof to one Bhayankar Singh, who had running Sharda College for quite some time. It was alleged that the plaintiff wanted to construct the first floor portion on the roof of the house in dispute but the defendant was not permitting him to do so. THE plaintiff thus prayed that a decree for eviction of the defendant-appellant on the grounds of personal bonafide requirement of the house and sub-letting be passed in his favour and further that by way of an injunction the defendant be restrained from causing any hindrance to the plaintiff constructing the first floor portion of the house in dispute. THE suit was contested by the defendant. In the written statement he denied that the house in dispute was bonafide required by the plaintiff or that he had sub-let any portion thereof to Bhayanakar Singh and pleaded that he had, within the knowledge of the plaintiff, only permitted the above said person to use its tin-shed portion for teaching girls for some time. He asserted that the entire house in dispute including its roof had been let out to him and that the plaintiff had no right to construct first floor portion thereon. It was also pleaded that the suit filed on the ground of personal requirement was pre-mature. THE defendant further pleaded that Vivekanand Vidhya Niketan School was a necessary party to the suit. THE learned trial court framed the necessary issues and after hearing the learned counsel for the parties, held that the suit filed on the ground of personal requirement was pre-mature. After recording the evidence produced by the parties, the learned trial court came to the conclusion that the defendant had taken the premises in dispute for running the above said school and that the said school was not the tenant of the plaintiff and, as such, was not a necessary party in the suit. It also held that under the terms of the tenancy, the plaintiff had a right to construct the first floor portion on the house in dispute and the defendant had no right to obstruct the plaintiff. THE learned trial court further found that the tin-shed portion of the house had been sub-let by the defendant to Bhayankar Singh at a monthly rent of Rs. 300/- and, as such, the defendant was liable to be evicted from the house in dispute. Consequently, the learned trial court passed a decree of eviction against the defendant on the ground of sub-letting and also passed a decree of injunction restraining the defendant from obstructing the plaintiff from constructing the first floor portion of the tenanted house. THE appeal filed by the defendant- appellant having been dismissed by the learned Additional District Judge No. l, Jaipur City, Jaipur, the defendant has approached this court by filing this second appeal under section 100 of the Code of Civil Procedure.

(3.) AS noted above, whereas the plaintiff-respondent had set up by the case that the defendant-appellant had sub-let the tin-shed in favour of Bhayankar Singh, the case set up by the defendant- appellant was that he had only permitted Bhayankar Singh to use the tin-shed for teaching girls for some time. The learned lower courts have held that since Bhayankar Singh was paying to the defendants-appellant Rs. 300/- per month as rent for the tin-shed, although he was showing the same as donation in the receipts issued to Bhayankar Singh, he had sub-let the tin-shed or parted with its possession to Bhayankar Singh. If this finding of fact is based on the evidence, it is binding on this court and it cannot be disturbed in this second appeal. If, however, this Finding is not based on any evidence it will be termed as a perverse finding and is liable to be set aside in this second appeal. It is, therefore, necessary to scrutinise the evidence produced by the parties in the present case.