JUDGMENT
B.R. Arora, J.
1. This appeal is directed against the judgment and decree dated 26th July, 1988 passed by Additional District Judge No. 2, Kota, by which the learned Additional District Judge, dismissed the appeal filed by the plaintiff and maintained the decree and judgment dated 18th August, 1983 passed by Additional Civil Judge No. 1, Kota by which the suit filed by the plaintiff was dismissed.
2. Plaintiff Kanti Prasad filed a suit for eviction and arrears of rent with respect to the house situated in Vijaypada, Kota. The suit was filed on the grounds of reasonable and bonafide necessity, default of payment of rent, material alterations made in the suit property, inconsistent user of the suit property for which he was admitted in the suit premises and that the tenant has created nuisance. It was also averred that the defendants have pledged some of his goods and kept a board of Bank on some portion of the premises which has resulted in lowering the prestige of the plaintiff. The suit was contested by the defendants. The learned trial Court by its decree & judgment dt. 18th August, 1983 dismissed the suit filed by the plaintiff. The question of reasonable and bonafide necessity, material alterations, inconsistent user of the property and the nuisance were decided against the plaintiff and in favour of the defendants while the question of default in payment of rent was decided In favour of the plaintiff but because it was a first default, therefore, the defendants were given benefit of Section 13(6) of the Act and the suit filed by the plaintiff was dismissed. Dissatisfied with the decree and judgment dated 18th August, 1983 passed by the Additional Civil Judge No. 1, Kota, plaintiff preferred an appeal before the learned District Judge, Kota which was transferred for disposal to the Court of Additional District Judge No. 1, Kota who by his decree and order dated 26th June, 1988 dismissed the appeal filed by the plaintiff and maintained the decree and judgment passed by the learned Additional Civil Judge No. 1, Kota. The learned Additional District Judge while dismissing the appeal also decided the question of reasonable and bonafide necessity, material alteration, inconsistent user of the property and unisance against the plaintiff and affirmed the findings arrived at by the trial Court. It is against this judgment and decree dated 26th July, 1988, passed by the learned Additional District Judge No. 2, Kota that the appellant has preferred this appeal.
3. It is vehemently argued by the learned Counsel for the appellant that the finding on personal necessity arrived at by the learned trial court is erroneous, arid both the courts below misread the evidence and even did not consider the material evidence. It is also contended by the learned Counsel for the appellant that the agreement to sale and contract for tenancy are two separate contracts and while dismissing the suit filed by the plaintiff, the learned lower court should not have taken into consideration the execution of an agreement to sale in favour of the defendant. It is also argued that the learned courts below did not consider the evidence in the right perspective and misread the evidence on record, The plaintiff specifically stated before the court, that he does not own any house except the house in question in any part of the Rajasthan but that part of the statement has not been considered while considering the evidence on the point of reasonable and bonafide necessity. The other contention raised by the learned Counsel for the appellant is that the learned lower Court was not right in drawing adverse inference against the appellant regarding serving notice for terminely tenancy and thereafter increasing the rent. The previous conduct of the appellant cannot be taken into consideration if the necessity of the appellant is bonafide at the relevant time when the suit was filed. In support of his case, learned Counsel for the appellant has placed reliance over the judgment reported in 1976 RCR 292 Thanimal v. Jodh Ram and 1975 Weekly Law Notes (UC) 286 Tharumal v. Jodhram. Lastly, it is contended by the learned Counsel for the appellant that the plaintiff has not to prove his dire necessity of the premises in question and he is only to prove his reasonable and bonafide necessity which the plaintiff has proved in the present case by the evidence produced by him. In support of his case, learned Counsel for the appellant has placed reliance on Govind Ram v. Abdul Wahid AIR 1963 (Raj) 234. Learned Counsel for the appellant further submits that he has moved an application under Order 7 Rule 7 CPC for taking into consideration the subsequent events. During the pendency of this appeal, the defendant has bought a new house in the town of Kota itself in the name of his wife and they are residing in that house and this subsequent event can be taken into consideration while deciding the present appeal. In support of his case, learned Counsel for the appellant placed reliance over R.C. Bhusan v. Dharrna Vir 1989 (1) RLR 167. Learned Counsel for the respondents on the other hand has supported the judgment and decree passed by the Court below. He further submits that the concurrent findings arrived at by the Courts below are purely findings of facts and no substantial question of law arises in this appeal and the appeal deserves to be dismissed on this score alone. Regarding the application under Order 7, Rule 7 moved by the learned Counsel for the appellant, it is contended that the application is not maintainable as the appeal itself has not been admitted. Alternatively he submits that no house has been purchased by the defendant in the town of Kota in the name of his wife. He is support of his case placed reliance over Kamruddin v. Wahid Ali 1987 (1) RLW 290, Ramdas v. Ishwar Chand and J.C. Mandoza v. J.L. Martin 1975 WLN (UC) 310.
4. I have considered the rival submissions made by the learned Counsel for the parties, and perused the orders passed by the Courts below. Both the Court below came to the conclusion that the plaintiff retired from, the Government service in the year 1972 and since after his retirement he is residing at Sri Ganganagar along with his family members, and there is no bonafide necessity of the plaintiff or any of his family members. The findings arrived at by the Courts below regarding reasonable and bonafide necessity as well as of the material alteration, inconsistent user of the property and nuisance are purely findings of facts and both the Courts below concurrently decided all these issues against the plaintiff and have given cogent reasons in support of these findings.
5. The next question which requires consideration is with respect to the application under Order 7 rule 7 CPC moved by the learned Counsel for the appellant during the pendency of the proceedings before this Court. The appeal has not been admitted. The findings arrived at by the learned lower Court on the various points are purely findings of facts and no substantial question of law is involved. The grounds raised by the learned Counsel for the application in the application under Order 7 Rule 7 CPC give rise to the appellant a fresh cause of action to get the suit premises evicted and on that question, the parties will have to lead their evidence. The appellant, if he so likes, can file afresh suit on that ground and the matter will be considered thereon. The plaintiff can raise this dispute in a fresh suit. The controversy cannot be resolved without taking the evidence on the point and when the appeal itself is not admitted. The application deserves to be dismissed at this stage, with liberty to the plaintiff to file a fresh suit on this ground if he so likes.