JUDGMENT
D.C. Dalela, J.
1. Heard.
2. A suit for rent and eviction came to be instituted by the plaintiff-respondent No. 1 against the defendant-appellant (tenant) and defendant-respondent No. 2. On the grounds of expiry of the stipulated period, as mentioned in the lease-deed, subletting by the tenant-appellant, to the respondent No. 2 and personal and bona fide requirement of the plaintiff-respondent No. 1 to do automobile business in the suit-premises, i.e. a shop. The learned trial court held that there has been no subletting of the suit-premises, but decided the issue of personal and bona fide necessity and comparative hardship, in favour of the plaintiff. It also decided that partial eviction is neither desirable, nor possible in view of the requirement of the plaintiff. It, therefore, passed the decree of eviction against the defendant. The matter was carried in appeal before the learned first appellate court, which dismissed the appeal and upheld the decree of eviction, passed by the learned trial court. Feeling aggrieved thereby, this second appeal has been filed.
3. There is concurrent finding that there is personal and bona fide requirement of the suit-premises by the landlord plaintiff-respondents. Both the courts below, after appreciating the evidence have decided the Issue relating to the bona fide and personal necessity, in favour of the plaintiffs. The question relating to the personal and bona fide requirement of the plaintiffs, does not give rise to any substantial question of law. In the case of Ram Prasad Rajak v. Nand Kumar, (1998)6 SCC 748 : (AIR 1998 SC 2730). Hon’ble The Supreme Court has held as under at page 2732 (of AIR):–
“….. the only other question relates to the
bona fide requirement of the appellant that does not give rise to any substantial question of law… It is entirely a matter to be decided on an appreciation of the evidence….. The High Court
made an attempt to reappreciate the evidence and come to the conclusion that the appellant failed to prove his bona fide requirement….. The High
Court has acted beyond its jurisdiction in appreciating the evidence on record.”
4. In the case of Sheel Chand v. Prakash Chand. (1998) 6 SCC 683 : (AIR 1998 SC 3063), the question formulated as to whether the finding relating to bona fide requirement of the landlord, of the courts below is vitiated due to irrelevant consideration and not under law, has been held by Hon’ble The Supreme Court, to be “not even a question of law, let alone a substantial question of law”. In the case of Satya Gupta v. Brijesh Kumar, (1998) 6 SCC 423, Hon’ble The Supreme Court has held :–
“The High Court, it is well-settled, while exercising jurisdiction under Section 100. CPC cannot reverse the findings of lower appellate court, on facts merely on the ground that on facts found by the lower appellate court another view was possible.”
5. Again in the case of Dr. Ranbir Singh v. Asharfi Lal, ((1995) 6 SCC 580), Hon’ble The Supreme Court, has held that interference with the findings of fact, on grounds of erroneous appreciation of evidence by the courts below, is not sustainable under Section 100, CPC.
6. In my opinion, the concurrent finding of both the courts below, regarding the bona fide requirement of the suit-premises by the plaintiff-respondents, does not call for any interference, because, the findings, of the facts, recorded by the two courts below, are based on the appreciation of evidence and there is no perversity or illegality therein.
7. On the question of comparative hardship also, there is concurrent finding of both the courts below. Their finding is based on the appreciation of evidence and material on record. Their decisions do not seem to be influenced by any irrelevant matter. The weight of preponderating circumstances and evidence has not been ignored by them. No interference is cabled for in this behalf as there does not seem to be any perversity of illegality in the finding. On the issue of partial eviction, the learned trial court, after due consideration and appreciation of evidence on record, came to the conclusion that partial eviction is neither desirable nor possible, looking to the requirement of the plaintiff. The learned first appellate court, however has not given any finding on the question of partial eviction.
8. It is well-settled in law that once personal
bona fide requirement or need is satisfied, the
Court has to further consider under Section 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 whether the need or require ment would be substantially satisfied by evicting the tenant, from a part of the premises only. In the case of Krishan Murari Prasad v. Mitar Singh, 1993 Supp (1) SCC 439 : (AIR 1994 SC 489). Hon’ble The Supreme Court has held that even if the premises comprises of only one room, its divisibility has to be considered. “It is a question of fact in each case, whether such partial eviction can be made or not. This inquiry has to be made by the Court after reaching the conclusion that the landlord’s requirement for occupation of the premises set by him has been made out, observed Hon’ble The Supreme Court. In the instant case in hand, the learned trial court has given the finding against partial eviction. The learned first appellate court found the case of personal and bona fide requirement in favour of the plaintiff and upheld the decree of eviction, passed by the learned trial court. This, by implication means that the learned first appellate court has also upheld the finding of the learned trial court, relating to the partial eviction.
9. That apart, there is sufficient evidence on record, to decide such question of partial eviction, in the instant case in hand and the evidence on record is so apparent against the partial eviction that even non-giving of any finding by the learned first appellate court, does not affect the decision. In the case of Prem Tent House v. Prakash Chand Jain, 1983 RLR 438, it has been held by this Court that there is sufficient evidence and material on record, to decide the question of partial eviction. There is no need to remand the case, to the lower court, for decision on the point.
10. The learned counsel for the appellants, has cited the case of LRs of Ibrahim v. LRs of Fakruddin, 1997 (2) RLW 768, to support his argument that the matter requires to be remitted to the first appellate court. But, a perusal of this decision would show that in that case, the finding, recorded by the first appellate court, on the question of partial eviction, was found to be not sustainable, and it was held that feasibility of partial eviction can only be decided, when a commissioner is appointed to elucidate the matter after local inspection. It is in these peculiar circumstances, the question of partial eviction
was remitted to the first appellate court Obviously, it is not the issue in this case in hand.
Therefore the decision cited by the learned counsel for the appellants, is not at all applicable to the
facts and circumstances of the present case in
hand. Here, sufficient evidence and material are
available on record, and they are very obvious
and apparent.
11. In the instant case in hand, the plaintiff Kewal Krishna Kumar (PW 1), has clearly testified that his requirement would not be met by the partial eviction. On behalf of the tenant defendant. T. S. Narayanan (DW 1), has deposed that the requirement of the tenant would be upset by the partial eviction. Thus both the sides have not favoured partial eviction. Partial eviction is, therefore, neither desirable, nor feasible having regard to the requirement of the plaintiff-landlord. Consequently, non-giving of specific finding by the learned first appellate court, with regard to partial eviction, does not affect the decision of both the courts below, in favour of eviction, as partial eviction is not possible.
12. No substantial question of law emerges in this second appeal, which has no merit. It is, therefore, dismissed.
