SHARAFAT HUSSAIN Vs. IRSHAD

JUDGEMENT

(1.) THE instant civil second appeal has been preferred against the judgment & decree dated 31/03/2006 passed by District Judge, Tonk by which he allowed the regular appeal filed by the defendant -respondent and set -aside the judgment and decree dated 07/01/2002 passed by the court of Civil Judge (Junior Division) and Judicial Magistrate, First Class, Tonk decreeing the civil suit for eviction on the ground of bona fide necessity and for recovery of rent in favour of the plaintiff -appellant.

(2.) THE facts giving rise to this appeal in brief are that the plaintiff -appellant filed a suit for eviction on the ground of default and bona fide necessity. As regards to default, benefit of first default has been allowed and issue regarding bona fide necessity was decided in favour of the plaintiff against which, appeal has been preferred and appellate court has set -aside the decree for eviction after consideration of the application under Order 41 Rule 27 CPC. Before the court below, contention of the appellant was that he is in bona fide need of the suit premises to run a shop for his son Shadab Hussain. Appellant and Shadab Hussain both have appeared in the witness box and the trial court has decreed the suit on the ground of bona fide necessity but the appellate court has reversed the finding on the ground that landlord has acquired the possession of one vacant shop and need if any has been satisfied.

(3.) THE suit has been filed with the contention that appellant is in need of the shop in question to run the business for his son and in examination before the court below, appellant has submitted that he had only two other shops and one shop in question, whereas subsequent events have been brought on record, which clearly shows that possession of one shop has been received by the appellant, which was in possession of tenant Mohd. Aslam. Contention of the appellant is that it was only an exchange. Shop No. 4, which was in occupation of the appellant has been sold to Mohd. Aslam and shop No. 2, which was in possession of Mohd. Aslam remained with the appellant. Hence, no new shop came in possession of the appellant and the appellate court has not considered his need in the above prospective. Per contra, the contention of the tenant is that admittedly, the appellant is having four shops out of which, one vacant shop is with the appellant since institution of the suit and as per his own contention, he is working at Krishi Upaj Mandi Tonk hence, when shop is lying vacant with the appellant, appellate court has rightly decided the issue of bona fide necessity against the appellant.