Arati Saha vs Mangal Sarkar

M. Sarma, J.—This Revision petition has been preferred against the judgment, and order dated 6.11.90 and decree dated 6.12.90 passed by the Assistant District Judge, Dhubri, in Title Appeal No. 36 of 1987 of his Court allowing the appeal in reversing and setting aside the judgment and decree dated 4.5.87 passed by the Munsiff No. 1, Dhubri in Title Suit No. 90 of 1986, decreeing the aforesaid suit.

The Petitioner as Plaintiff instituted the above mentioned suit against the opposite party as Defendant alleging that, the opposite party as tenant under the Petitioner landlord used to sublet the demised house premises without his permission; that the demised suit house, is bona fide required for occupation for his son, Shri Ajoy Kumar Saha, who is an educated unemployed youth, to start his own business for his livelihood to him; that he came to know subsequently during the trial of the suit that the opposite party; had built his own house and business recommendation situated at Vivekananda Road, Dhubri Town, Trial court decreed the sun and against this opposite party-Defendant preferred Appeal. The lower appellate court set aside the judgment and decree of the Munsiff as aforesaid.

Opposite party, as Defendant denied subletting any portion of the room of allowing Ors. to store goods on rental basis, that he was a whole-sale and retail sale dealer of tea and godown and entire premises was required for storing tea. Regarding bona fide requirement defence stand was that Plaintiff''s son Ajoy was managing and looking after the grocery shop of the Plaintiff, situated at Mankachar and premises was not required for personal use of his son as claimed, that the Plaintiff had vacant land and other house where he can start any business.

For consideration of this Court, issue No. 2 i.e. Whether the suit premises was sub-let by the Defendant and issue No. 3 whether the premises was required bona fide, are material, as the suit relates to ejectment of the Defendant opposite party, This issue was decided against the Plaintiff on the ground that Plaintiff failed to adduce sufficient evidence to support his claim. Plaintiff as P.W. 1 named one Dilip Das but he was not examined as P.W. But P.W.3 who had godown contiguous to the godown of the Defendant, named Dilip Das who used to keep materials on rental basis. He has been disbelieved by the court as he was a casual visitor, P.W. 4 and 5 who deposed that they also used to store" materials on payment rent to the i Defendant was disbelieved on the ground that the Plaintiff did not name them in his evidence nor in the plaint. Summary rejection of the evidence of all the Plaintiff''s'' witnesses as not reliable was that, these witnesses did not produce any documents in support of their deposition nor the store-keeper was examined. The nature of the evidence in my view, shows that using of the godown by Ors. on payment of rent under the Defendant was casual but fact remains that those Plaintiff''s witnesses did keep their materials (bags) in the godown of the Defendant which was rented to him by the Plaintiff and the Defendant realise rent from them. For keeping the bags in godown no receipt or document is necessary. As it can be presumed, from the, evidence on record that, storing of bags of the witnesses was casual, but for that rent was realized. Apparently this realisation of rent by the Defendant for using his, premises amount to subletting which was not in the terms of the lease agreement I hold that in deciding the issue the learned courts below did not appreciate the evidence on record which is illegal as he failed to act within his jurisdiction for which the Appellant was prejudiced. Accordingly on the reasons given above the issue No. 2 is revised as set aside and the issue is decided in favour of the Plaintiff. The reference (AIR 1972 J&K, 37) relied on by the court below is not applicable in the case in hand and I respectfully disagree with it.

The next issue No. 3 i.e. plea of bona fide requirement of the Plaintiff need be revised, as materials on record has established that plea of bona fide requirement has sufficient force and the plea has been fully supported by me witnesses. Evidence of P.W. 2, 3 established that the premises is necessary for the use of the unemployed son of the Plaintiff, who was going to start his own business. In the case of Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, it is held that even for bona fide requirement precise name of business need not be stated. In a series of decisions it is held that, landlord can claim the property for extension of his business to increase his income which come to the meaning of bona fide requirement. P.W. 1 son of the Plaintiff was an unemployed youth and the premises is necessary to start his own business. Further, it is also in record that the Defendant has his own building and business premises. The materials on record supported the claim for bona fide requirement of the premises by the Plaintiff. This issue also is decided in favour of the Plaintiff. Accordingly, the findings of the first appellate court is set aside in view of the reasons discussed above and the findings of the trial court is restored.

In the result the revision petition is allowed. Send down the records to the court below to proceed accordingly. Opposite party is directed to pay Rs. 1000/- as costs to the Plaintiff revision Petitioner.