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S.B. CIVIL SECOND APPEAL NO. 73/1995.
Om Prakash & Anr. Vs. Mahesh Kumar
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Date of Order :: 27th July 2010.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Anil Vyas for
Mr. S.D. Vyas, for the appellant.
Mr. Suresh Shrimali ]
Mr. Mahesh Joshi ], for the respondent.
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BY THE COURT:
This civil second appeal under Section 100 of the Code
of Civil Procedure has been preferred against the judgment
and decree dated 19.01.1995 passed by the Civil Judge
(Senior Division), Mount Abu camp Abu Road affirming the
judgment and decree dated 11.12.1989 as passed by the Civil
Judge (Junior Division), Abu Road in Civil Suit No. 99/1976.
By the judgment and decree dated 11.12.1989, the
learned Trial Court decreed the suit for eviction and recovery
of arrears of rent in favour of the plaintiff-respondent on the
ground of default in payment of rent by the defendants-tenants
and on the ground of reasonable and bona fide requirement of
the plaintiff. The appeal preferred by the defendants against
the judgment and decree so passed by the learned Trial Court
came to be dismissed by the learned Appellate Court by its
judgment and decree dated 19.01.1995.
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This second appeal was admitted for consideration on
07.04.1995 by this Court while formulating the following
substantial questions of law for determination in the case :-
“1. Whether the owner of a building can
became a landlord when his predecessor-in-title
was never a landlord ?
2. Whether the plaintiff who filed a suit for
residential and commercial accommodation can
maintain this ground of bonafide necessity when
he has acquired the possession of the shop and
house and parted the same?”
It has been submitted in this appeal on behalf of the
defendants-appellants that when the plaintiff claimed having
derived title from Mohini Devi and there has not been any
proof on record that Mohini Devi ever became the landlord,
the learned subordinate Courts have erred in assuming that
there existed relationship of landlord and tenant between the
plaintiff and the defendants. In has further been submitted
that the finding on reasonable and bona fide requirement
remains perverse and the fact of the plaintiff having other
accommodation has not been appreciated.
The learned counsel for the respondent has raised the
objection that no substantial question of law is involved in this
case. The learned counsel submits that as a matter of fact,
the impugned decree had already been executed before
passing of the interim order in this appeal; and the suit
premises were delivered in the possession of the plaintiff who
continues to occupy the same. The learned counsel contends
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that the question relating to the relationship of landlord and
tenant does not even arise in this matter where the defendants
themselves alleged having tendered rent to the plaintiff-
respondent. The learned counsel further submits that the
defendants having failed to comply with the requirements of
the order making provisional determination of rent, their
defence against eviction was struck off and the learned
subordinate Courts have specifically found the defendants to
be the defaulters in payment of rent. Hence, according to the
learned counsel, the decree for eviction deserves to be
maintained on this count itself. The learned counsel yet
further submits that nothing of parting with any part of the
premises has been proved on record.
Having examined the record of the case with reference
to the law applicable, this Court finds force in the submissions
made on behalf of the respondent.
The defence against eviction was struck off in this
matter and thereafter, the subordinate Courts have
concurrently found the defendants to be the defaulters in
payment of rent. The finding remains essentially a finding of
fact and does not appear suffering from any perversity. Once
this finding becomes final and for the defendants being not
entitled to the protection of Section 13 (6) of the Act, the
decree for eviction follows as a necessary consequence. No
substantial question has been formulated on questions relating
to default and striking out of defence nor appears arising
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either. In this views of the matter, the submission on the
question of reasonable and bona fide requirement appear
rather redundant. Even in relation to reasonable and bona fide
requirement, the learned subordinate Courts have examined
the record and have recorded the findings in accordance with
law which do not call for interference being essentially the
findings on facts.
So far the feeble attempt as made on behalf of the
defendants in questioning the status of the plaintiff as landlord
is concerned, suffice is to point out that according to the
defendants themselves, they did tender rent to the plaintiff.
This is coupled with the fact that the plaintiff is said to have
derived title from one Mohini Devi who in turn derived title
from Bhoormal-Ram Prasad who was admittedly the owner of
the property and who inducted the defendants as tenants.
In a comprehensive view of the matter, this Court has no
hesitation in coming to the conclusion that there existed the
relationship of landlord and tenant between the parties to the
suit. In view of the above, there appears no reason or basis to
consider any interference in the findings of the subordinate
Courts.
Accordingly, the appeal fails and is, therefore,
dismissed. However, in the circumstances of the case, the
parties are left to bear their own costs.
(DINESH MAHESHWARI), J.
//Mohan//
