TALSA RAM Vs. MOHAMMED ALI

JUDGEMENT

(1.) THIS second appeal is against the judgment and decree passed by the first appellate court dated 25. 11. 1989 passed in Civil Appeal Decree No. 122/84 by which the first appellate court upheld the eviction decree dated 27. 11. 1984 passed by the court of Civil Judge,sirohi in Civil Original Suit No. 5/82.

(2.) BRIEF facts of the case are that the plaintiffs descendants of original landlord filed the suit for eviction of the defendant Talsa Ram in the trial court on 6. 3. 1976. The ground for eviction submitted by the plaintiffs are that the defendant committed default in payment of rent, the suit premises is required for personal bonafide necessity of the plaintiffs for running a flour-mill in the suit premises as the plaintiffs have no other accommodation in the town Sheoganj for this purpose. The defendant contested the suit. In the trial court issues were framed on 18. 2. 1977 and thereafter on 13. 12. 1982, additional issue was framed with respect to the plea whether the decree for part of the suit premises can satisfy the need of the plaintiffs. The evidence was recorded and thereafter the trial court held that the defendant committed default in payment of rent and also decided issue of personal bonafide necessity in favour of the plaintiffs. The trial court also decided the issue of partial eviction and observed that both the parties have clearly admitted that by eviction of tenant from part of premises will not satisfy the requirement of any party. Consequently, the eviction decree for whole of the rented premises was passed by the trial court on 27. 9. 1984. The tenant preferred regular first appeal to challenge the finding of the trial court recorded on the issue of default as well as the finding recorded on the question of personal bonafide necessity of the plaintiffs for the suit premises. The first appellate court partly allowed the appeal of the defendant- tenant and held that the defendant-tenant has not committed default in payment of rent, however, the first appellate court upheld the finding of the trial court on the question of personal bonafide necessity of the plaintiffs for the suit premises. Hence against the judgment and decree of the first appellate court dated 25. 11. 1989, this second appeal has been preferred. Following substantial questions of law were framed by this Court while admitting this second appeal on 23. 11. 1992:- " 1. Whether in the circumstances the finding of the Lower Court about their bonafide necessity is clearly vitiated on account of non-consideration of the most important facts and evidence ? 2.Whether the non-consideration of the fact whether partial eviction will meet the bonafide requirement of the land lord vitiates the decree ?

(3.) THE learned counsel for the respondent also submitted that even in a case where there was no pleading and there was no issue on the question of partial eviction, even then if the court has recorded finding then it is not necessary and desirable to set aside the finding of the court below which was recorded after affording opportunity of hearing to both the parties in the civil suit. THE learned counsel for the respondents relied upon the judgment of this Court delivered in the case of Bhanwar Lal vs. Tikam Chand & ors. (2000 (4) WLC (Raj.) 408) = (RLW 2001 (1) Raj. 564) and another judgment of this Court delivered in the case of Anandi Lal vs. Smt. Sarju Devi & ors. (2000 (4) WLC (Raj.) 547) = (RLW 2000 (4) Raj. 324 ).