Mangi Lal and Another vs LRs. of Smt. Noori and Others

Vineet Kothari, J.—Heard the learned Counsel for the parties.

This appeal of the defendant - tenant is against the concurrent judgments and decrees of eviction by two Courts below for the suit shop situated at KEM Road, Bikaner.

The Courts below found that personal bonafide necessity of the plaintiff - respondent was established by the plaintiff and therefore, he was entitled to a decree of eviction. As far as question of partial eviction is concerned, the Courts below have found that the suit shop is only 6 ft. x 14 ft. size and therefore, partial eviction could not be ordered. The plaintiff requires the said shop for setting up of his photo-copy machine shop and adjacent shop available for him was passage cum shop which was only 4 ft. wide. The Courts below have also found that the defendant had alternative shop in the market itself where he had established the shop for sale of Supari and therefore in view of alternative accommodation being owned and possessed by the defendant, the issue of comparative hardship was also decided in favour of the plaintiffs.

The learned Counsel appearing for the defendant Mr. Suresh Shrimali urged that the shop in question was situated in main market and the defendant had been carrying on his business of sale of "Supari" in that ever since 1971 when the said shop was let out to him on 1.9.1971 for a sum of Rs. 150/-per month. He submitted that the bonafide need was claimed for Bhoj Raj S/O Ashu Ram and the plaintiff Noori Bai who is now about 70 years of age and therefore, the shop in question is not required for his bonafide need. He further submitted that partial eviction of the suit shop was possible and the defendant could part with the possession of 1/2 rear portion of suit shop of 6 x 14 ft. in which requirement of plaintiff - landlord of setting up of photo-stat machine could be satisfied.

These submissions have been opposed by Mr. Sajjan Singh, learned Counsel appearing for the plaintiff - respondent. He submitted that the question of bonafide necessity and partial eviction are findings of facts and no substantial question of law arises for determination by this Court u/s 100 C.P.C. in the present second appeal. He submitted that the plaintiff''s family is large family and need of the plaintiff not only existed at the time of filing of the suit, which is required to be seen, but also continues to be there as members of the family including son of Bhojraj requires the said suit shop for carrying on business. He submitted that adjacent shop available to the plaintiff is only 4 x 14 ft. strip, which is also used as passage by the family members of plaintiff and therefore, requirement of plaintiff cannot be satisfied by partial eviction of a small shop which is of 6 ft x 14 ft. size. He also relied upon the judgment of this Court to the effect that of a single shop, partial eviction cannot be decreed. He, therefore, prayed for dismissal of second appeal.

Having heard the learned Counsel and upon perusal of the impugned judgment as also the judgments cited at the Bar, this Court is of the clear opinion that no substantial question of law arises in the present second appeal. As far as question of bonafide necessity is concerned, the same being findings of facts, which cannot be termed as perverse and resulting out of misreading of evidence in any manner, cannot be disturbed and upset in second appeal. As a matter of fact, in view of recent pronouncement of Hon''ble Supreme Court in the case of Gurdev Kaur v. Kaki reported in (2007) 1 RLW 636 second appeal on such issue would not be even maintainable. As far as question of partial eviction is concerned, this Court is of the opinion that the suit shop in question is very small shop being only 6 ft. x 14 ft. in size in which partial eviction cannot be decreed. Further more, since the defendant No. 2 has admittedly got another shop in the market area itself, the defendant can shift his business from the suit shop to that shop. Therefore, on comparative hardship also, the Courts below have rightly found in favour of the plaintiff - landlord and granted decree of eviction.

Thus, this Court is of the clear opinion that no substantial question of law arises for consideration and determination by this Court u/s 100 C.P.C. and the appeal is found to be devoid of merit and the same is accordingly dismissed. No order as to costs.