MAHESHWARI SAMAJ Vs. MOHANSINGH

JUDGEMENT

(1.) THE common question of law which arises for consideration in these four appeals is that if premises are required for use of persons belonging to a particular community of a particular place, can such a use be termed as philanthropic As this question arises in all these four appeals, they shall be disposed of by a common order.

(2.) MAHESHWARI Samaj of Jodhpur owns a huge property known as 'Maheshwarion -ki -Bagechi' in front of Jaswant College campus at Jodhpur. At present there are several small apartments in that building, four of which are on rent with the respondents as tenants thereof. In the year 1969, Maheshwari Samaj, Jodhpur filed four suits for eviction and for recovery of arrears of rent against tenant respondents, on the ground that the landlord bonafide and reasonably required the premises in dispute for philanthropic purpose, namely, for converting the entire building into a hostel for students belonging to the Maheshwari community, who come to Jodhpur for receiving education. It was also stated in the plaints that the samaj intended to construct a rest house for persons of Maheshwari community who come to Jodhpur from out side in connection with their litigation or for their business or for the purposes of marriages, after raising donations. Thus, the plaintiffs' case was that the premises were bonafide and reasonably required by the landlord for philanthropic use within the provisions of Section 13(1)(h)(iv) of the Rajasthan Premises (Control of Rent and Eviction Act, 1950 (hereinafter referred to as 'the Act'). The suit filed by the plaintiff against Mohansingh and two suits filed against Shardulsingh were dismissed on February 11, 1971 by the trial court, but the suit filed against Shaitansingh was decreed by that court on December 23, 1971. All the appeals arising out, of four suits were heard together by the Additional Civil, Judge Jodhpur who by his judgment dated March 21, 1973 allowed the appeal in Shaitansingh case and upheld the decree passed by the trial court in the three other appeals and thus all the four suits ere dismissed. It was held by the first appellate court that as the premises were intended to be used for constructing a hostel and a rest room for members of the Maheshwari Samaj only, the need of the plaintiff could not be held to be for 'philanthropic' use. According to the learned Additional civil Judge, the necessary element of philanthropic use is the good of all fellow men or benefit of all humanity and that such an element was conspicuously laking when the plaintiff intended to restrict the use of the property to members of a particular community. It was also held that the Maheshwari samaj was not a person and the premises cannot be said to be required for the use and occupation of any person, for whose benefit he premises were held, within the meaning of Sub -clause (ii) of Clause (h) of Section 13(1) of the Act.

(3.) WHEN the appeals came up for hearing before me on February 37, 1981, it was urged that after the amendment of the Act by the introduction of Sub -section (2) of Section 14 in the Act the question of greater hardship is required to be decided even if the finding in respect of the issue relating to personal necessity is reversed by this court. Therefore, by identical orders passed in all these four appeals, this court framed an additional issue on the question of greater hardship and remitted the same to the learned Additional Civil Judge, Jodhpur for recording the evidence and giving a finding, in respect thereof. The learned Additional Civil Judge, Jodhpur by his order dated September 13, 1982 has given a finding against the plaintiff on the question of greater hardship by identical orders in all the four appeals. The finding recorded by the learned Additional Civil Judge on the question of greater hardship has also been challenged by the learned Counsel for the plaintiff appellant in this court.