Tatia, J.
1. This is tenant's appeal against the judgment and decree dated 31.7.1999 passed by the learned Additional District Judge No. 1, Udaipur in Civil Original Suit No. 273/97 which the trial court decreed the suit for eviction of the plaintiff against the defendant-tenant on the ground of bonafide necessity of the plaintiff and rejected the plea of change of user of the premises as alleged by the plaintiff against the defendant. The trial Court also held that the defendant-tenant committed default in payment of rent as the rent from 4.8.1996 to 9.y.l997 were not paid to the plaintiff by the defendant but the trial Court granted benefit of first default to the tenant and, after declaring the tenant as first defaulter, refused to pass decree on the ground of default.
2. Brief facts of the case are that the plaintiff Smt. Madhulika Agrawal filed suit for eviction for the House No.35 situated at Ambawgarh, Udaipur alleging that the suit premises was let out by the plaintiff to the defendant on 4.4.1989 having rent of Rs. 2000/- per month. The plaintiff alleged that from August, 196 till June, 1997, no rent was paid by the defendant to the plaintiff, therefore, the defendant is defaulter as he has not paid rent for more than six months and hence, the plaintiff is entitled for decree for eviction on the ground of default as provided under Sub-clause (a) of Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act' of 1950).
3. The plaintiff further alleged in the plaint that her husband was first appointed at Ajmer in the year 1969 and the plaintiff is residing with her husband along with her family members in a rented house of one Shri K.B. Mathur at Ajmer. Shri K.B. Mathur is pressing hard to the plaintiff and her husband to vacate the house. The plaintiff's husband opted for voluntary retirement in the month of October 1994. Thereafter, the plaintiff requested the defendant to vacate the house in dispute as the house in dispute is needed by the plaintiff bonafidely for her own as well as residence of her family members. According to the plaintiff the house was constructed by the plaintiff with clear intention that after the age of superannuation of the husband of the plaintiff, the plaintiff and her husband will live in this house at Udaipur permanently. The plaintiff further submitted that the defendant himself admitted in writing on 6.7.1996 that the suit premises is required by the plaintiff as her husband retired from the service and, therefore, the defendant will vacate the house in dispute on 28.2.1997 and will hand over the possession of the house to the plaintiff. The plaintiff further submitted that the plaintiff is resident of Udaipur and her relations including her mother, brother and sisters etc. are living at Udaipur.
4. It is further alleged that the plaintiff and her husband are having no residential accommodation except the present disputed house at Udaipur. Though the plaintiff alleged that part of the premises of the house in dispute is being used by the defendant for his various purposes by using it as go-down. Therefore, the plaintiff is entitled for decree for eviction on the ground of change of user in addition to the ground of her personal bonafide need, as mentioned above.
5. The defendant-deceased Subhash Sidhwani, in his life time, submitted the written statement before the trial Court and denied the facts alleged in the plaint but admitted the fact of tenancy. The defendant further admitted that the plaintiff was residing at Udaipur before her marriage but, after her marriage, she is residing at Ajmer with her husband and the husband of the plaintiff is doing the job of consultancy of engineering, for which the plaintiff's husband has opened office at Ajmer and doing the business at Ajmer after retirement. The entire story of personal need of the plaintiff for the house in dispute is concocted story having no factual basis.
6. It is further alleged that the plaintiff with the help of her husband lodged a false criminal case against the defendant in the Police Station, Ambamata and, by force of the police officers, the plaintiff got executed agreement dated 6.7.1996. It is further alleged that the defendant is not residing with his father but residing in a rented house and the defendant got separated from his father by an oral partition. The defendant further denied the allegation of default in payment of rent and alleged that the defendant was ready to pay the rent, therefore, the defendant is not defaulter. It is further submitted that the defendant is not using the part of the property for his business nor he is using the part of the properly as go-down. The defendant in addition to above pleas, filed the counter claim for fixing standard rent at the rate of Rs. 2000/-per month.
7. The trial Court framed the issues relating to the personal bonafide need of the plaintiff, comparative hardship and partial eviction and also framed the issue with respect to the allegation of change of user of the premises by the defendant and default in payment of rent and, on the basis of the counter claim, issue with respect to the standard rent was also framed.
8. The plaintiff in support of her case appeared in the witness-box as P.W.1, plaintiff's husband Shri Vishnu Agrawal appeared as witness as P.W.2, whereas, the defendant appeared in rebuttal to the plaintiff's case as D.W. 1 and also produced Om Prakash (D.W.2), Mahesh Kumar (D.W.3), Rajesh Chug (D.W.4), Prakash (D.W.5) and Mukesh Kalaria (D.W.6).
9. As stated earlier, the suit for eviction was decreed on the ground of personal bonafide necessity of the plaintiff holding need of the plaintiff as reasonable bonafide personal necessity and there is no possibility of partial eviction and, in case of refusal of decree, it was held that the plaintiff will suffer greater hardship than the defendant. The trial Court held the rent of the suit premises as Rs. 2200/-per month and decreed the suit for eviction along with damages for use and occupation at the rate of Rs. 2200/- per month and the difference of rent from interim determination of rent to the actual rent.
10. Being aggrieved against the judgment and decree dated 31.7.1999, the defendant-appellant preferred this regular first appeal. During the pendency of this appeal, the appellant expired on 6.4.2000. The appellant's legal representatives were taken on record by order dated 16.1.2001.
11. I have heard the learned counsel for the appellant as well as the respondent and have perused the record.
12. The learned counsel for the appellant challenged the judgment and decreed passed by the trial Court and submitted that the trial Court has proceeded to decide the suit only on the basis of assumption in favour of the plaintiff. According to the learned counsel for the appellant, it was an admitted case of the plaintiff in her plaint itself that the plaintiff is residing with her husband at Ajmer because of the fact that the plaintiffs husband was in service at Ajmer, which shows that it was the plaintiff who was residing with her husband and it is not the case of the plaintiff that, after retirement, the plaintiff will not live with her husband but plaintiff's husband will have to live with her at the place which will be the choice of the plaintiff. According to the learned counsel for the appellant a reasonable construction of the pleading only shows that the plaintiff's husband and the plaintiff are residing at Ajmer since 1969 and they are settled at Ajmer. The plaintiff failed to plead and prove any reason for uprooting themselves from Ajmer and, in case they decided to leave Ajmer, they failed to plead and prove that they had only intention to live at Udaipur and, particularly in view of the fact that when the plaintiff was residing with her husband at Ajmer and plaintiff's husband is having his own residential house at Jodhpur, The learned counsel for the appellant vehemently submitted that in all probabilities, if it is held that the plaintiff and her husband wants to leave Ajmer then, in view of the fact of availability of residence of plaintiff's husband at Jodhpur and looking to the fact that plaintiff's husband is belonging from Jodhpur, they can shift to Jodhpur only.
13. The learned counsel for the appellant further vehemently submitted that the case of the plaintiff is absolutely unbelievable because of the fact that the husband of the plaintiff was admittedly settled at Ajmer since 1969 and it is also admitted by the plaintiff that her husband is carrying on consultancy business of engineering at Ajmer and they have not made any efforts to shift at Udaipur from Ajmer after seeking voluntary retirement in the year, 1994. It is also vehemently submitted by the learned counsel for the appellant that if the plaintiff and her husband had an intention to occupy the house in dispute at Udaipur then they would not have let in out in the year, 1989. The husband of the plaintiff was not due to retire in the year 1994 and he sought voluntary retirement. The reasons and facts are not pleaded by the plaintiff why the husband sought voluntary retirement from service. According to the learned counsel for the appellant the very foundation of the need is missing and the foundation of need is intention to uproot the plaintiff and her husband from Ajmer with an intent to shift at Udaipur.
14. The learned counsel for the appellant also submitted that the intention of the plaintiff and her husband are very clear by the agreement dated 6.9.96 which they got executed from the defendant by threat of the police. This shows that the intentions were not bona fide of the plaintiff and she wanted to get rid of the defendant. There was no reason for the defendant to execute document dated 6.9.95 (Ex.26).
15. In sum and substance, the contentions of the appellants are that:
(1) the plaintiff and her husband are settled at Ajmer and are living at Ajmer since 1969,
(2) the husband of the plaintiff sought voluntary retirement in the year, 1994, therefore, there must be some strong reason for uprooting themselves from Ajmer,
(3) there is no intention of the plaintiff and her husband to leave Ajmer because of the reasons that:
(a) living since 1969 at Ajmer,
(b) Consultancy business of husband of the plaintiff at Ajmer and no efforts to leave Ajmer and has got opened an office at Ajmer of consultancy business of the plaintiffs husband. There is no reason to leave Ajmer as the allegation of pressure of landlord of the plaintiff's husband at Ajmer has not been proved.
(4) In case they had any intention to occupy the house in dispute for their residence then why it was let out in 1989.
At the time of service, the plaintiff lived with her husband and naturally she will live with her husband and it is not the case of the plaintiff that she was living with her husband because of the only reason that the service of the plaintiff's husband and with the end of service of the plaintiff's husband, the plaintiffs husband will have to live with her for which there is no pleading and no evidence.
(5) Even if the plaintiffs wants to leave Ajmer then she failed to prove that she will live at Udaipur for which the learned counsel for the appellant pointed out the grounds that:
(a) the plaintiff's husband is having his own residential house at Jodhpur,
(b) plaintiff's husband is resident of Jodhpur, and
(c) plaintiff's husband's relations are at Jodhpur.
16. It is submitted by the learned counsel for the appellant that even in any case the plaintiff and her husband, intent to leave Ajmer then the choice is available to them and reasonable inference can be drawn that they will shift to Jodhpur, for which the learned counsel for the appellant submitted that the plaintiffs husband's relations are at Jodhpur and there is no reason for not shifting to Jodhpur at the own birth place by the husband of the plaintiff and can do his consultancy business at Jodhpur also.
17. The learned counsel for the appellant, in support of this contention, relied upon the statements of the plaintiff and her husband wherein the plaintiff admitted in her statement that before living at Ajmer, the plaintiff's husband was residing at Kota. The plaintiff admitted that her husband is bonafide resident of Jodhpur with his father and mother. The plaintiff in her statement admitted that plaintiffs father's ancestral house is at Jodhpur. The plaintiff further admitted that her husband is doing the business of consultancy. She stated that he is doing small business of consultancy at Ajmer. These facts shows that the plaintiff and her husband were having no attachment with Udaipur and there is an ancestral house of the plaintiff's husband at Jodhpur and when there is no evidence by which it can be held that the plaintiff can have any attachment and intention to shift at Udaipur then, in view of the admitted fact that as the plaintiff is residing since 1969 at Ajmer and her husband has not made any effort to shift from ajmer, then the intention of the plaintiff of shifting from Ajmer itself is not proved. According to the learned counsel for the appellant, mere desire of the landlord cannot be a ground for eviction from the premises in dispute. The plaintiff is required to prove that there is a bonafide need and to see the bonafides, the circumstances are relevant and not the word of mouth and that too of only interested parties like the landlady and her husband.
18. The learned counsel for the appellant further submitted that the credibility of the plaintiff and her husband are shaken by the plea taken by them with respect to the house of the plaintiff's husband. It is pointed out by the learned counsel for the appellant that the plaintiff herself admitted that the house at Jodhpur is ancestral house of the father-in-law and mother-in- law of the plaintiff for which the plaintiff stated that the above house was gifted to her sister-in-law (sister of husband), whereas the plaintiff, in subsequent statement, stated that the gift was made by will execute by the father-in-law of the plaintiff.
19. The learned counsel for the appellant further vehemently submitted that the Will was deliberately not produced. According to the learned counsel for the appellant, in view of the admitted fact that the house at Jodhpur was ancestral house of the plaintiffs husband's father and mother and, therefore, neither it could have been gifted orally nor it could have been bequeathed. The share of the plaintiffs husband will remain even after the alleged will, though the Will or the Gift-deed itself have not been placed on record and proved and, therefore, an adverse inference is required to be drawn against the plaintiff for non-production of the above documents.
20. The learned counsel for the appellant further submilted that even the statement of the plaintiff's husband further proves that the house at Jodhpur was ancestral house and has been admitted by the plaintiff's husband. The husband of the plaintiff admitted in his statement that they are total five brothers and he has no knowledge of the fact that whether the name of his younger brother has been given in the Will or not. The plaintiff's husband admitted that his all the five brothers have raised their own houses and are living in their own houses.
21. The above evidence clearly shows that the plaintiff if wants to leave Ajmer then he can certainly shift to Jodhpur but need to live at Udaipur has not been proved, rather even there is absence of intention to live at Udaipur.
22. I have considered the arguments advanced by [he learned counsel for the appellant which were supported by the learned counsel by relying upon the following judgments:
(1) Judgment of Punjab and Haryana High Court reported in : Mrs. 'Romesh Rani Anand v. Mohan Lal Gupta (1).
23. In this case a suit for eviction was filed by Smt. Romesh Rani Anand who was teacher at Ludhiana and sought decree for eviction for house situated at Jullundur. Smt. Romesh Rani Anand was residing at Ludhiana for last 15 years and their children were also getting education at Ludhiana. It was alleged by Smt. Romesh Rani Anand that she would get herself transferred or seek fresh appointment as a teacher at Jullundur after the house in dispute is vacated. This plea of Smt. Romesh Rani was rejected by all the courts including the Punjab and Haryana High Court by the above mentioned judgment.
24. The facts in the above case show that the above judgment relied upon by the learned counsel for the appellant has no relevance to the facts of the present case as in the present case, neither the plaintiff is in service nor her husband is in service. The plaintiff's husband has been retired from the service in the year 1994. The plea of seeking transfer by Smt. Romesh Rani in the above case for getting another job was not accepted as a reasonable ground for eviction in view of the fact that she was residing al different city, that too since last 15 years and there are no relevant facts in the judgment with respect to the circumstances in which she sought eviction.
(2) Judgment of Punjab and Haryana Court reported in : Parkash Kaur v. Narainder Kaur (2).
25. In this case, the land lady was posted al village Nagar, Tehsil Phillaur. She admitted in her statement that she never got permission from the department to slay at Ludhiana nor she ever purchased a regular pass of any bus service to go and come back from Ludhiana to the station of her posting. She further admitted that she was posted at Village Nagar for the last ten years. She further admitted that she was posted at Ludhiana prior to the date of the purchase of disputed house and no change of circumstances has been brought on the record which could show that the need has arisen for her to live at Ludhiana since the year 1972 though she has been residing at village Nagar prior thereto for the last eight years. Therefore, in these circumstances, the Punjab and Haryana High Court held that if she really needed the house for her own occupation, there was no reason for her to let out the house to the petitioner after its purchase.
26. The facts of this case shows that the landlady was in service at different place and during the period when she was in service at that place, she appears to have purchased the house in dispute on 16.8.1972. She let out some portion of this house after purchase to the present tenant Smt. Narinder Kaur and there was no reason for her to let out the house in dispute when she purchased the house for her own occupation. It was observed by the Hon'ble Judge of the Punjab and High Court that there is no change in circumstance necessitating to occupy the house after letting it out to the tenant.
27. The facts of the above case are also have no application to the facts of the present case except that during the currency of the posting of plaintiff's husband the house in dispute was let out but there is a substantial change in circumstance of retirement of the plaintiff's husband. The facts of the case of Smt. Prakash Kaur (supra) are that the landlady was in service at different village and she had no permission to stay at the place where her house was situated.
(3) Judgment of this Court reported in J.C. Mandoza v. J.L. Martin (3).
28. In this case, the facts given in the judgment show that the plaintiff was residing at Bombay. He had ten children. His two daughters were resident students in Sophia School, Ajmer. Rest of the children were living with him at Bombay. According to the plaintiff, to keep four children in the boarding house was too expensive and he, therefore, wanted his wife to stay in Ajmer with the children in the suit house so that all the four children may take their education at Ajmer, the trial Court dismissed the suit of the plaintiff holding that the plaintiffs requirement cannot be said to be reasonable and bonafide and in fact the plaintiff needed the house for selling the same, but the first appellate Court reversed the finding of the trial Court with respect to the oblique motive of the plaintiff to sell the house in dispute but even then held that the plaintiff failed to prove his need as genuine, reasonable and bonafide, therefore, the first appellate Court also dismissed the suit of the plaintiff. During second appeal, the plaintiff retired from service and it is also submitted that he vacated the official residence at Bombay. This High Court also dismissed the second appeal by observing as under:
'The admitted position thus is that all the children are at Bombay. He has his own flat and his one son and two daughters are employed there. None of his children is at the moment reading in Rajasthan. It is thus obvious that his need for the suit house for the purpose of keeping his children to give them education at Ajmer if at all there was any, does not subsist. He has stated that in the affidavit that five of his children are still reading but none of them is in Rajasthan and they are at Bombay with the plaintiff where he has been residing after retirement in the flat purchased by him, the mere fact that he has all the intention to come back to Ajmer to reside in the suit house is not sufficient to hold, as the matter exists today, that he requires the suit house reasonably and bonafide, something more than the mere assertion is required to establish the genuineness of the need. All the children reading at Bombay must have settled in their new schools. it has not been disclosed by the plaintiff in what classes his five school going children are reading at the moment and how does he contemplate to get them admitted in the institutions at Ajmer. The subsequent facts having been placed on record by the plaintiff himself (vide his affidavit dated 11th and 12th of August, 75) cannot be lost sight of. The conditions are changed, the children reading at Ajmer and Jaipur having been withdrawn from their schools either on account of the competition of their studies or for any other reason and their having established at Bombay, leave no ground for me to take a different view of the matter than what has been taken by the first appellate Court. In this view of the matter I have no alternative but to uphold the dismissal of the suit for eviction.
29. The above reasoning given for holding that the plaintiff is not entitled for a decree for eviction, clearly shows that the facts of the above case have no application to the facts of the present case. In the above mentioned case, the suit was filed for the reason that the plaintiff wanted to keep her four children in the house in dispute as his children were living in boarding house, which was according to the plaintiff was more expensive whereas it was found that none of the landlord's children was residing in Rajasthan and it was observed that the children residing at Ajmer and Jaipur having been withdrawn from their schools either on account of competition of the studies or for any other reason and their having been settled at Bombay, whereas here, in the present case, the plaintiff's husband has retired and the plaintiff is having her own house at Udaipur.
(4) Judgment of Punjab and Haryana High Court reported in R.K. Jain v. Khazan Singh (4).
30. While relying upon the above case, the learned counsel for the appellant submitted that mere wish to reside cannot be a ground for eviction against the tenant and wish of the landlord to live comfortably in his own spacious house. It is mere wish not reflective of need and on the ground of wish of the landlord, decree for eviction cannot be granted. In this case also, the plaintiff wanted to shift from Ludhiana house. It is mere wish not reflective of need and on the ground of wish of the landlord, decree for eviction cannot be granted. In this case also, the plaintiff wanted to shift from Ludhiana to Chandigarh for treatment for which no evidence was placed on record that medical aid was not available at Ludhiana. Therefore, the plaintiff was not entitled for decree for eviction.
31. The above judgment has also no application to the facts of the present case.
(5) Judgment of Calcutta High Court reported in : Thakur Chandra Nandi v. Arun Kumar Roy Chowdhury (5).
32. In this case the landlord was living in Orissa in his own house but wanted to shift in his own house at West Bengal after retirement and the point in controversy in this case was whether the accommodation in possession of landlord at Orissa whether be taken into consideration for the purpose that landlord possessed suitable reasonable accommodation and it was held affirmatively by holding that Section 13(l)(ff) of the West Bengal Premises Tenancy Act does not restrict the word 'accommodation' so as to make it inapplicable to accommodation outside the Slate. The Calcutta High Court held on facts that the landlord lived in his own house in Orissa but wanted to shift in his own house at West Bengal after his retirement was his desire and the tenant cannot be evicted on the basis of desire of the landlord. While deciding this case, the trial Court as well as the appellate court held that the plaintiff had no intention to come back to West Bengal at Calcutta and for which both the Courts held that if the plaintiff had any intention to settle at Calcutta in West Bengal, he would not have constructed the house in Orissa and this was held to be indicative of intention of the plaintiff to settle permanently at Orissa.
33. Here in the present case, this is proved or is virtually an admitted case that the house in dispute is the sole ownership house of the plaintiff though there are alleged to be ancestral house of the plaintiff's father at Udaipur and plaintiff's husband's ancestral house at Jodhpur. If the consideration which prevailed in the case of Thakur chandra Nandi then, it can be legitimately presumed that since the plaintiff herself has purchased the house at Udaipur, it sufficient indicative of her to live at Udaipur and she had an option to purchase the house at Ajmer also and she has not purchased the house at Ajmer despite the fact that she and her husband were living at Ajmer since 1969, can be a good ground for holding that she had no intention to settle permanently at Ajmer but she had intention to settle permanently at Udaipur. The plaintiff as well as her husband had option to purchase the house at Jodhpur also but they have not purchased or constructed the house at Jodhpur. This fact is also relevant fact to find out the intention of the plaintiff and her husband with respect to their future permanent residence and that goes against the defendant.
34. The above arguments submitted by the appellant, if examined, it is clear that the intention of the parties are known to the parties only and for that purpose the statements of the parties are relevant. If the landlord files a suit for eviction alleging that he has an intention to live in his own house then that intention is to be looked from all the surrounding circumstances including the trustworthiness of the statements on oath of the plaintiff and his/her witnesses. To find out the intention of the plaintiff for her/his personal bona fide need the defendant cannot have normal personal knowledge of the intention of the plaintiff. The tenant can have impression with respect to the bonafide or malafide intention of the landlord from the circumstances known to the defendant. There cannot be a barometer to test the intention of the landlord who seeks eviction from the premises against the tenant. Therefore, first of all I would like to examine the statement of plaintiff and his witnesses whether they can be relied upon or they have been shaken in the facts of this case.
35. In this case, the plaintiff stated on oath that she is bonafide resident of Udaipur. Her brothers, sisters and mother are living at Udaipur. Her elder daughter got married at Udaipur. She owned the house in dispute which is situated at Udaipur and other than this house in dispute, the plaintiff has no other property at Udaipur and also alleged that she had her husband are having no properly elsewhere away from Udaipur also. She further categorically stated that house was constructed to live in this house after retirement. The house was let out to the defendant on 4.4.1989 when husband of the plaintiff was in service at Ajmer, therefore, naturally they could not have occupied the house for their own residence and it was not expected that they will keep the house vacant till her husband retires. Therefore, if they let out the house in the year 1989, it cannot be said that merely by letting out the house in dispute several years before the expected retirement of the plaintiff's husband, can be a ground to hold that the plaintiff and her husband had no intention to live in the disputed house. The plaintiff further stated on oath that she wants to live at Udaipur where her brothers, sisters and daughters are living, In cross-examination to the plaintiff, the plaintiff further explained that she was living at Ajmer because of the service of the husband of the plaintiff. It is relevant to mention here that in cross-examination of plaintiff no suggestion has been advanced by the defendant that she has no inlenlion to live in the house after retirement of her husband. Even no suggestion has been advanced by the defendant suggesting any reason to live at Ajmer despite the fact that her husband retired from the service and there are reasons to live at Ajmer even when she has her own house at Udaipur.
36. The learned counsel for the appellant heavily relied upon the admission of the plaintiff that her husband is having some consultancy work at Ajmer to show that the plaintiff and her husband has no intention to leave Ajmer. Merely doing some consultancy work at Ajmer, cannot be a ground to hold that the plaintiff and her husband had intention to live at Ajmer. It is not expected from the landlord/husband to remain idle after retirement and it is also not expected that the landlord should immediately shift from her place of service to indifferent place and start his some work at the place where he is seeking eviction of the premises. The purchase of the immovable property and construction of the residential house are sufficient grounds and they matters very much because when having choice to own the properly at different places, as in this case, al Udaipur, ajmer and Jodhpur, the landlord when purchased the residential house al a particular place by investment of huge amount, that factor itself is sufficient indicative of intention of the landlord to reside at that place. The plaintiff and her husband had full opportunity to purchase me house at Ajmer but they did not choose so. When the plaintiff stated on oath that she had her husband wants to shift to Udaipur, no suggestion has been given by the defendant-tenant in cross-examination that the shifting from Ajmer itself was not bonafide and in case they want to shift, they should shift to Jodhpur. The above fact only shows that the defendant also was not in a position to suggest the alternative accommodation for shifting at Jodhpur or remaining at Ajmer though in view of the various judgments, this right is not available to the tenant to suggest how and where the plaintiff would live.
37. In the same sequence, if we go by the evidence of Vishnu Agrawal (P.W.2), husband of the plaintiff, it is clear that husband of the plaintiff stated on oath that her wife is resident of Udaipur, his brother-in-law, his co-brother, his sister-in-law are living at Udaipur and her daughter is also living at Udaipur, he stated on oath categorically that the house in dispute was constructed al Udaipur with intention to live at Udaipur after retirement. He also stated that he and his wife are having no other house anywhere. Therefore, there is no reason I disbelieve the statements of the plaintiff and her husband. The fact of having ancestral house al Jodhpur of the plaintiff's husband is of no consequence in view of the fact that it cannot be presumed that the plaintiff has constructed the house at Udaipur despite the fact that she had no intention to live al Udaipur. The learned counsel for the appellant could not point out any reason that for what purpose the house was conslructed at Udaipur in case the plaintiff never had ,any intention to live at Udaipur. Assuming for the sake of argument that plaintiff's husband has got ancestral house at Jodhpur, this itself is not a ground for holding that the plaintiff is not having bonafide need to reside and occupy in the house in dispute. The ancestral house was very much in existence in the year 1994 when plaintiff's husband retired but he has not shifted to his ancestral house at Jodhpur since 1994.
38. Above facts clearly not only show that there are statements on bath of the plaintiff and plaintiff's husband in support of his intention to leave Ajmer and to settle al Udaipur but surrounding circumstances, i.e., construction of house at Udaipur and marriage of one of the daughters of plaintiff at Udaipur, show that the plaintiff and her husband had intention to leave Ajmer and settled at Udaipur.
39. The learned counsel for the appellant submitted that in view of the judgments cited above, mere desire cannot be a ground for eviction and the landlord cannot be held to be best judge of his need. If the landlord will be held to be best judge of his need then very purpose of enacting the provisions of providing persona! bonafide need of the plaintiff will be futile and ineffective provision of law.
40. The learned counsel for the respondent relied upon the various judgments wherein it was held by the various High Courts that landlord himself, and not the tenant, it is best judge of his residential requirement. As pointed out by me, in the preceding paras, once it is found that there are reasons to believe that the plaintiff wanted to occupy the disputed premises for his own residence then normal presumption is that the plaintiff is best judgment of his requirement and the defendant- tenant has no right to dictate the plaintiff how he should live and where he should live. It is different thing that the defendant can show that it is either impossible or highly improbable to hold that the plaintiff landlord will live in the disputed premises but, here in this case, all the preponderance of probabilities show that the plaintiff wants to live in the house in dispute and there is no reason for holding that the plaintiff had intention to live al Ajmer or Jodhpur. The reasons given by the learned counsel for the appellant that when the plaintiff admitted that she was residing with her husband during the continuance of service of the plaintiff's husband, naturally she will live with her husband and it cannot be presumed that she was living with her husband because of her husband's service and it is not the case of the plaintiff that after the end of the period of service of plaintiff's husband, the plaintiff's husband will live with her. The argument advanced by the learned counsel for the appellant in way of presentation may be attractive, but in substance, it is absolutely hollow. The plaintiff was residing with her husband. The need by the plaintiff does not mean that in case the plaintiff shifts to her own house with her husband, is a change of position of relation of living with each other. The husband and wife if go together then it is not material in this case who is living with whom but material fact is that both were living together and will live together.
41. The learned trial Court carefully examined the facts and evidence in the case and after appreciation of the evidence and law on the subject, rightly held that the plaintiff proved her personal bonafide need for the house in dispute and the trial Court has not committed any illegality in it. The trial Court also relied upon the various judgments of the Hon'ble Apex Court wherein it has been held that the best judge in the need of the landlord is the landlord and even if there are alternative accommodation available to the landlord, it is for the landlord to decide which is more suitable for him. The same principle will apply to the property situated even at different cities.
42. The learned counsel for the appellant also submitted an application under Order VII Rule 7 CPC on 24.4.2001 and submitted that the original appellant Subhash expired on 6.4.2000. His elder son is of 26 years of age only and sudden death of appellant Subhash hardened the situation to the appellant's family. It is also submitted by the appellant, in the above application, that the appellant came to know that the husband of the plaintiffs owns the house at Jodhpur situated at 100, 10th B Road, Sardarpura, named as 'Suraj Bhawan'. According to the appellant, this house belongs to Shri Vishnu Agrawal, husband of the plaintiff and further submitted that he carries on consultancy job at Ajmer from his settled residence as well as from Jodhpur from the above house. It is also stated that husband of the plaintiff has never carried on any business or job at Udaipur. The above facts are requested to be taken on record while deciding the appeal and to be considered at the time of decision.
43. I have considered the above facts also and the arguments advanced by the learned counsel for the appellant as well as the respondent upon this application.
44. So far as death of original appellant Subhash is concerned, this is an admitted fact but what hardship would be caused to the appellant, the legal representative of Subhash due to the death of the appellant Subhash so as to effect the merits of the case, has not been submitted by the appellant and, therefore, the contention deserves to be rejected only on this ground.
45. It is stated that the age of eldest son of the appellant is only 26 years but the relevant fact is that what he is doing and from when he is doing any job or business etc. are not mentioned. How the age is relevant is also not mentioned.
46. So far as submission of the appellant that the husband of the respondent is having his own house at Jodhpur, this fact was already in the knowledge of the appellant for which the plaintiff and her husband stated that this house was ancestral house. They had full opportunity to enquire into the matter and submit the facts with respect to the house. How they were prevented or original appellant was prevented from enquiring into the matter, are not on record. These were the evidence which should have been placed on record by the defendant before the trial Court, but assuming for the sake or argument that there is one house of the husband of the plaintiff at Jodhpur, the sufficient material are not available on record from which source the appellant came to know about the exclusive ownership of the house at Jodhpur. What enquiries were made by the present appellant to submit that the above house belongs to husband of the plaintiff-respondent and from when this house belongs to the husband of the respondent. No documentary evidence has been placed on record by the appellant in support of his contention by obtaining necessary documents from the registering authority nor any notice to produce documents with respect to the above house, has been served upon the plaintiff-respondent. The availability of house at Jodhpur is of no consequence as the intention of the plaintiff was found to be bonafide to seek eviction of the house in dispute at Udaipur with intent to occupy the house at Udaipur. Therefore, the application filed under Order VII, Rule 7 C.P.C. by the appellant is rejected, as having no material bearing on the merits of the case and because of the fact that allegations are not substantiate by the material facts by the appellant.
47. The learned counsel for the appellant tried to advance the argument on the basis of the agreement Ex.26 to show that the plaintiff wanted to evict the defendant by all means knowing it well that the agreement to vacate the premises cannot be foundation for seeking eviction from the premises when the tenant is protected by the Rent Control Act in force in the Rajasthan. According to the learned counsel for the appellant, Ex.26 was got executed with the help of the police force by the plaintiff and her husband which shows the mala fide intention of the plaintiff. The argument advanced by the appellant is devoid of any force. Ex.26 was executed as back as on 6.7.1996. After this agreement was executed by the defendant, due to under force on duress, then if should have been objected by the defendant immediately after the end of the illegal force or undue influence or the duress but it has not been done. The defendant categorically admitted his signatures on Ex.26 and also admitted that witness to this Ex.26 Deepak Bharati is relation of the defendant, he further admitted that another witness Mahendra Kumar is also his neighbour. It is appears that the plaintiff made some efforts to get the premises vacated by persuading the defendant and that and be only an intention of the plaintiff showing her bonafide Who made efforts for getting the premises amicably. This document only supports the bonafide of the plaintiff and not any malafide of the plaintiff. Making efforts for settlement out of Court cannot be said to be any malafide of the parties.
48. I have also perused the statements of the defendants Subhash (D.W.1), his witnesses Om Prakash (D.W.2) and Mahesh Kumar (D.W.3).
49. The evidence of the defendant only shows that the defendant admitted that when the house in dispute was let out, the plaintiff's husband was in the house at Ajmer. The defendant further admitted that plaintiff's mother, father, brothers all are living at Udaipur and also admitted that plaintiff's brother-in-law is also living at Udaipur. He further admitted that the plaintiff's daughter is married at Udaipur. The defendant further admitted that the plaintiff's brother-in-law is living not only at Udaipur but near the house of defendant. These facts are sufficient facts on the basis of which plaintiff can have reason to live at Udaipur. Nothing has been claimed from the evidence of the defendant so as to hold that the plaintiff had no intention to live at Udaipur or her need is not bonafide or reasonable.
50. So far as the question of comparative hardship is concerned, it is clear from the evidence of the plaintiff that her husband had retired, she wants to live at Udaipur, her mother, brothers, sisters, her brother-in-law, all are living at Udaipur. She has no other accommodation at Udaipur. Therefore, in case of refusal of decree of eviction, the plaintiff will naturally suffer greater hardship whereas the defendant failed to prove any hardship except the natural hardship due to the eviction of any tenant and, in view of the reasons given by the trial Court, I am also of the opinion that in case decree of eviction is not granted in favour of the plaintiff, the plaintiff will suffer greater hardship than the defendant.
51. In view of the above reasoning, there is no substance in the appeal of the appellant. Hence, the appeal of the appellant is dismissed with costs and the judgment and decree of the trial Court is upheld.