SHANKAR LAL Vs. BHANWAR LAL

JUDGEMENT

(1.) Heard learned counsel for the parties. The brief facts of the case are that the plaintiff-respondent filed the suit for eviction against the defendant-appellants on the ground of personal bonafide necessity of the suit premises so that the plaintiff may construct stair to reach on the roof of his property and may raise construction over the first floor. It is also pleaded that part of the rented premises will be included in the adjoining shop of the plaintiff so that the plaintiff may utilize for expansion of his adjoining shop for his needs as pleaded in the plaint. The trial court as well as first appellate court found the need of the plaintiff, as reasonable and bonafide. The appellants are aggrieved against the judgment and decree dated 8th Jan., 1990 passed by the trial court and the judgment and decree dated 12th July, 2001 passed by the first appellate court.

(2.) Present second appeal was heard by this Court on 20th Sept., 2001 and this Court in its detail order dated 20th Sept., 2001 held that:- "So far as the findings recorded by the trial court about the bonafide and reasonable necessity of the plaintiff for setting up a stair case in the suit shop to reach roof of his shop for his enjoyment is concerned, it is a finding of the fact and cannot be examined by appreciating evidence in this second appeal."

(3.) However, this Court after looking into the peculiar dimension of the shop of the defendant, which is only 4'x28', held that the question of partial eviction of the tenant from the shop in dispute is required to be examined to find out, whether the need of the plaintiff can be satisfied by giving some part of the rented premises to the plaintiff so that the plaintiff may construct stair case and remaining portion may be kept in the tenancy of the defendant. The matter was remitted back to the first appellate court for decision on issue of partial eviction. After remand of the case, the first appellate court permitted both the parties to lead evidence and thereafter, held that the decree for partial eviction cannot satisfy the need of the plaintiff as it is not possible to construct stair case except by getting possession of the entire shop from the defendant, therefore, the trial court decided the issue against the defendants-tenants-appellants.