JUDGMENT
Kanta Bhatnagar, J.
1. Baboo Lal, husband of the appellant and father of respondent Nos. 2 to 10 had filed a suit in the Court of Additional Civil Judge, Bharatpur for ejectment of the stair case on rent with respondent No. 1 Mangtoo Ram and recovery of arrears of rent. The learned Additional Civil Judge, Bharatpur by the judgment dated November 4, 1980 decreed the suit of the plaintiff Baboo Lal for ejectment of the suit premises and arrears of rent to the tune of Rs. 1140/- and mesne profit @ Rs. 60/-P.M. from June 1, 1975 till the date of possession of the premises. Mangtoo Ram defendant-respondent preferred appeal against the aforesaid decree and challenged the findings of the trial Court on Issues No. 1,2 and 3 relating to the rate of rent, personal reasonable bonafide necessity of the plaintiff of the suit premises and the comparative hardship of the parties. The learned Additional District Judge No. 1, Bharatpur reversed the findings of the trial Court on all the three Issues and accepted the appeal of the defendant-respondent by the judgment dated March 27, 1984. Feeling dissatisfied by the judgment of the first appellate Court, Smt. Kiran Devi wife of Baboo Lal plaintitff has filed second appeal in this Court against Mangtoo Ram defendant respondent and proforma respondents No. 2 to 10.
2. The case of the plaintiff was that adjacent to his shop situated at Kumhergate, Bdaratpur, there is a stair case for going to the roof of the shop. That, the said stair case was rented to Mangtoo Ram in the year 1972 at the monthly rent of Rs. 60/-. That, the defendant had installed a wooden cabin on the first step of the stair case measuring 3’x4′ and was carrying on business of betel in that cabin. The plaintiff had sought vacation of the rented premises on the ground that the defendant had committed default in payment of rent and also on the ground that the plaintiff wanted to raise construction on the roof of the shop and for that purpose the stair case was required. The case of the plaintiff was that the accommodation in the house with him was not sufficient for his big family. The defendant contested the suit on both the grounds and alleged that the suit premises was let out at the monthly rent of Rs. 15/- P.M. only. Regarding the requirement of the suit premises to the plaintiff, the plea taken by the defendant was that the plaintiff was having one house at Kumhergate and another at Goodri Mohalla and there is no necessity for him to raise any construction over the shop of the roof on which the stair case in question was leading.
3. The learned Additional Civil Judge decided the first three Issues in favour of the plaintiff and passed the decree. The findings of all the three Issues were challenged in appeal. The learned Additional District Judge, No 1 Bharatpur did not approve the findings of the trial Court and held that the suit premises must have been rented out at the monthly rent of Rs. 15/- p.m. only and the plaintiff cannot be said to be in bonafide requirement in the suit premises. It was also held that there would be more hardship to the defendant than the plaintiff in case the decree for eviction is passed. The findings of the first appellate Court on these Issues have been challenged here on the ground that they are based on surmises and conjectures only and not the evidence on record.
4. During the course of arguments the learned Counsel for the appellant addressed the Court only on the point of personal bonafide necessity of the suit premises to the appellant and there being more hardship to her in comparison to the defendant in case the first appellate Court’s judgment is not reversed. The learned Counsel for the appellant did not advance any argument regarding the finding on Issue No. 1 and upon perusal of the judgment of the two Courts below, I find that the reasons given by the first appellate Court regarding Issue No. 1 are based on proper appreciation of evidence and that Court has rightly discussed that the burden of establishing that Rs. 60/- P.M. was the rent settled for the suit, premises was on the plaintiff and the failure of the defendant in not maintaining the accounts would not give any help to the plaintiff. In this view of the matter, the finding of the trial Court on Issue No. 1 does not call for any interference.
5. The learned Counsel for the appellant strenuously contended that the sound reasons given by the trial court was upon proper appreciation of evidence regarding the reasonable bonafide necessity of the plaintiff for the suit premises called for no interference by the first appellate court. It has also been stressed that the evidence on record clearly indicates that the point of comparative hardship in case the decree was not passed, was in favour of the plaintiff and the learned Additional District Judge, No. 1, Bharatpur has not taken into consideration the material brought on record by the plaintiff.
6. The case of the plaintiff was that he had a big family and it was necessary for him to raise construction on the shop and for that purpose stair case was required and that was possible only if the defendant vacated the stair case by removing his betel cabin from it. The case of the defendant was that the plaintiff had two houses, one at Kumher Gate and other at Goodri Mohalla and his family was well adjusted in the rooms available in those houses. The learned Additional District Judge was of the opinion that it has come in evidence that the plaintiff was living peacefully in his house at Goodri Mohalla and, therefore, it cannot be said that he had any requirement for further construction on the roof of the shop adjacent to the stair case in question.
7. In order to appreciate the contentions of the learned Counsel for the parties, it would be profitable to look to the statement of the plaintiff. He had stated that he had two residential houses one at Kumhergate and other at Goodri Mohalla. According to Baboo Lai he had eight sons, four grand sons and three grand daughters. Out of his sons four were married. The three married sons with their families were residing in the house situated at Goodri Mohalla. One married son with his wife was residing in the house at Kumhergate and one unmarried son and one unmarried daughter were residing with him and his wife at Goodri Mohalla. In that house there were four big rooms and four kitchens. In the house situated at Kumhergate there are three rooms. His one married son with his family and his one married daughter and son in law were also residing in that house.
8. The learned Additional District Judge No. 1, Bharatpur did not consider the necessity of the plaintiff raising a construction on the roof of the shop because in his opinion, the plaintiff could ask his daughter and son-in-law to vacate the room in her possession and could have himself shifted in that room. The reasons given by the learned first appellate Judge are not appealing. No such point was raised by the defendant at the trial nor it is the case of the defendant that the daughter and son-in-law were allowed to live in the house after the litigation. Apart from it, if the plaintiff wanted to raise construction over the roof of the shop and was in a financial position to do so, it cannot be insisted upon him to ask his daughter and son-in-law to vacate his house in their occupation.
9. In view of the big family of the plaintiff and four sons being married and one son and one unmarried daughter living with him, the requirement of the additional room which the plaintiff wanted to construct on the roof of the shop cannot be said to be unreasonable. The learned Judge has also expressed that the plaintiff could have raised construction on the roof of the other house in his possession. The plaintiff has come with a case that the atmosphere in the house in which he and his three married sons were living was not congenial. That, in the house at Goodri Mohalla in which another son with his wife and his daughter and son-in-law were residing was two storied with three rooms in all. As such, the plaintiff’s desire to raise construction on the shop cannot be said to be unreasonable. It is upon the owner of the house to raise construction wherever he desires. In that view of the matter finding of the First Appellate Court on issue No. 2 regarding the personal reasonable necessity of the plaintiff cannot be said to be unjustified.
10. The learned Counsel for the defendants has tried to justify the findings of the learned First Appellate Court on the ground that despite the judgment of the First Appellate Court being in favour of the plaintiff no steps were taken for raising construction or even getting the plan approved from the concerned authorities. Another ground taken is that Baboo Lai had filed the suit on the ground of his personal bonafide necessity and on his expiry the personal necessity of the plaintiff came to an end and, therefore, his wife has no right to get the suit premises vacated on that ground.
11. I find force in the contention of the learned Counsel for the appellant that as the litigation at the appellate stage was pending it was not advisable for the plaintiff to proceed with the construction work because there was apprehension of construction of the appellant becoming useless if the decree was not upheld, as has actually happened.
12. So far as the necessity of the appellant i.e. wife of the plaintiff is concerned, it is correct that in Para No. 3 of the plaint, plaintiff had written that he had the personal reasonable necessity of the suit premises and wanted to raise construction for his use over the roof of the shop where the stair case in question leads to. When a person states that he has necessity of a room, it would ordinarily include the necessity of the wife also. This is not the case of the defendant that the plaintiff and his wife were living separate or were not having good relations. In this view of the matter plaintiff’s necessity included the necessity of the wife and as such the appeal filed by the wife is maintainable.
13. The next point arising for determination is whether the conclusion drawn by the First Appellate Court on the question of comparative hardship of the parties i.e. decision of issue No. 3 is correct.
14. The learned Judge was of the opinion that the plaintiff had only stated that defendant can get on rent a space for installing his stall approximately at rate of Rs. 60/- or Rs. 70 – per month in that locality but he has not stated where was such a place available.
15. It is pertinent to note that the learned trial court has referred to the evidence on the point. Upon perusal of the evidence, I rind that plaintiff has not been cross-examined on this statement of his. The First Appellate Court has observed that in case plaintiff wanted to raise the construction over the roof, he could do so by using a ladder. The learned Judge has also observed that, subsequent to the construction, the plaintiff, instead of using the stair case in question, may use ladder or some wooden slab. I do not agree with this suggestion by the learned Judge. Firstly because it may not be convenient and even not permissible to fix the ladder on the road; secondly it may also not be safe to use the wooden slab and thirdly why should a person be forced to face such hardship and inconvenience when a stair case is available to him. The shop of the plaintiff is a wooden stall. The plaintiff will have to suffer greater hardship in case the stall is not removed and stair case is not vacated for the construction over the roof and subsequent use of the same.
16. I am, therefore, of the opinion that the plaintiff would suffer greater hardship in comparison to the defendant in case the decree for eviction is not passed.
17. Consequently, finding of the First Appellate Court regarding the issues relating to personal bonafide necessity and comparative hardship to the parties, deserves to be set aside.
18. Resultantly, the appeal is allowed and the findings of the First Appellate Court for Issues No. 2 & 3 are set aside. The judgment of the First Appellate Court on those issues is restored. The respondent-defendant Mangtoo Ram is allowed two months period to vacate the suit premises i.e. stair case in question.