Mr. V. Nath, J.(Oral)—Heard Mr. Abbas Haider, learned counsel appearing for the appellant and Mr. P.N.Sahi, learned senior counsel appearing for the respondents.
2. The plaintiff is the appellant in this appeal against the judgment and decree of affirmance dismissing the suit filed by the plaintiff for eviction of the defendant from the suit premises.
3. At the outset, it be pertinent to mention here that the suit premises is a shop, fully described in the schedule of the plaint wherein the defendant carries on her business. The relationship of landlord and tenant in between the plaintiff and the defendant is also admitted and the defendant has accepted that she has been paying rent to the plaintiff for the suit premises. It further be pertinent to mention here that originally the suit was filed for eviction of the defendant on ground of personal necessity and default in payment of rent but now only the relief of eviction only on ground of personal necessity has been pressed in this second appeal on behalf of the appellant. In this view of the matter, the rival cases of the parties and their submissions on the issue pertaining to eviction on ground of personal necessity alone is being noticed and considered in this judgment.
4. The necessitous facts are that the suit premises is situated on the south east corner of the building originally belonging to the family of the husband of the plaintiff. In partition, the southern portion of the building (described in rough sketch map in Schedule-B of the plaint) was allotted to the share of the father of the plaintiff''s husband, and according to the plaintiff there was further partition of this portion, after the death of the father of the plaintiff''s husband, among the mother-in-law and her three sons including the husband of the plaintiff. In the said partition the western portion of the building was allotted in the share of the mother-in-law namely Ratan Mala Shee and the two portions adjacent east to the same along with passage/opening on the G.B. Road was allotted to the separate shares of the two brothers of the plaintiff''s husband namely Sapan Kumar Shee and Abhay Kumar Shee. The eastern most portion facing the G.B.Road was allotted to the plaintiff''s husband Tapan Kumar Shee. The two brothers namely Sapan Kumar Shee and Abhay Kumar Shee of the plaintiff''s husband had sold their respective allotted shares along with the passage/opening to the plaintiff by registered sale deed dated 13.08.1996.
5. It is the case of the plaintiff that in the western portion of the building there is a passage and door opening in a lane leading to the main road known as G.B.Road and the family members of the plaintiff''s husband including the plaintiff earlier used the said door for their ingress and egress in the building but after the partition and allotment of the western portion in the share of the mother-in-law of the plaintiff, the difficulty has arisen in the use of the said passage and door as the mother-in-law of the plaintiff has started prohibiting the plaintiff from using the said door due to the strained relationship which developed after the plaintiff has purchased the shares of the two brothers of her husband. It is the further case of the plaintiff that southern portion of the building which is the suit premises has a passage/opening abutting G.B.Road but it was not in use as such by the joint family before partition as the passage and door in the western side was already available and was in use, and therefore the area of the said passage was let out to the defendant by the family for establishing Ghee shop but after partition and after purchase by the plaintiff of the shares of two co-sharers, the need for restoring the said passage/opening in the southern portion, at present the suit premises used as shop by the defendant as tenant, has arisen. The plaintiff has also averred that she has got no other independent passage/opening for ingress and egress in her purchased portion in the building except the passage occupied and used by the defendant as shop as the tenant of the plaintiff.
6. The defendant, by filing the written statement, has contested the claim and the relief as prayed by the plaintiffs. In short, it is the case of the defendant that the story of partition among the widow and three sons of the father-in-law of the plaintiff is concocted and more so when the two sisters of the plaintiff''s husband also entitled to their shares in the building after the death of their father have not been given their due shares in the said partition. It has been further emphasised that the building has got the opening through passage in the western portion which is, in fact, used by the plaintiff and the family members, and the portion of the building under the tenancy of the defendant has never been used as passage rather it has been let out to the defendant as a shop. It has been the case of the defendant that the mother-in-law namely Ratan Mala Shee of the plaintiff has never obstructed and objected to the use of the western passage of the building by the family members, and the case of the plaintiff in this regard is false and concocted only for the purpose of seeking the eviction. It has also been the case of the defendant that the entire front potion of the building facing G.B.Road excluding the portion in the tenancy of the defendant is in occupation of the plaintiff''s husband on the basis of the alleged partition and therefore the plaintiff has got sufficient other space to be used as opening towards the main road and on this basis it has been asserted that the need of the plaintiff is not bona fide and reasonable.
7. The issues in the suit were framed which included a separate issue with regard to the bona fide and reasonable requirement of the suit premises by the plaintiff. The trial court held that the plaintiff had failed to establish that the suit premises under the tenancy of the defendant had ever been used as a passage. It was further also held that as there were other passage/opening in the building which were available to the plaintiff, her requirement for the suit premises was not bona fide and reasonable. Accordingly, the plaintiff was non-suited on this score.
8. In appeal, the appellate court has concurred with the findings of the trial court and has also taken the view that the plaintiff having her status as "Ardhangani" under Hindu law of her husband can have her ingress and egress to her purchased portion in the building through the passage abutting the G.B.Road existing in the portion allotted to her husband. After finding that the plaintiff has failed to make out and establish the case of eviction against the defendant on the ground of personal necessity also, the appeal has been dismissed by the impugned judgment and decree.
9. This appeal has been admitted for hearing by order dated 02.03.2009 on the following substantial questions of law:
(i) Whether the learned courts below having specifically found that the relationship of landlord and tenant was admitted, there were justified in assuming that there was no personal necessity, although the evidence sufficiently proved that the plaintiff was residing in a tenanted house?
(ii) Whether the impugned judgment and decree of the learned court of appeal below is violative of the specific provision of Order 41, Rule 31 of the Code of Civil Procedure , as no points or issues were framed for deciding the title appeal?
(iii) Whether the learned court of appeal below had rightly decided the title appeal without considering the evidence of any of the parties?
10. At the outset, on the commencement of hearing of this appeal, Mr. Abbas Haider, learned counsel for the appellant has submitted that another substantial question of law also arises for consideration in this appeal in view of the fact that this appeal is now being pressed for the eviction decree against the defendant-respondent only on the ground of personal necessity of the plaintiff-appellant for the suit premises. It has been submitted that the finding by both the courts below on the issue of personal necessity is against the material pleading and evidence on record and also against the settled principles of law and therefore the legal sustainability of that finding is directly in question in this appeal. It has therefore been prayed that this appeal may also be heard by framing additional substantial question of law in this regard.
11. After considering the submissions and the fact that this appeal is being pressed for the relief of eviction decree only on the ground of personal necessity, the following additional substantial question of law is framed for consideration in this appeal:
"Whether the findings by both the courts below on the issue of bona fide and reasonable requirement of the plaintiff for the suit premises are unreasonable and perverse in view of the pleadings and evidence on record"?
12. While criticising the impugned judgments, learned counsel for the plaintiff-appellant, has submitted that the trial court has wrongly dwelt upon the question whether the suit premises was earlier used as a passage or not and has wrongly non-suited the plaintiff on that score but the appellate court below has not even taken pains to reconsider the pleadings and evidence on the said question or on the main issue of personal necessity. It has been urged that the appellate court below has fancifully approached the matter and denied the relief to the plaintiff mainly on the basis that she being wife can avail the facility of the passage/opening existing in the share of her husband and therefore her requirement for the suit premises is not bona fide.
13. Elaborating the submissions, it has been contended that the plaintiff has purchased the shares of the two co-sharers (brothers of her husband) by registered sale deed and she has her own right to have independent ingress and egress to her purchased portion by evicting her tenant and utilise the tenanted premises as passage. It has been argued that the fact has not been disputed that the vendors of the plaintiff had their share in the building and no member of the family of the plaintiff''s husband has at any point of time questioned or challenged the transfer of their shares by them in favour of the plaintiff by registered sale deed and even the defendant has also not challenged the said transfer. It has thus been canvassed that the plaintiff after acquiring an independent right in the portion of the building purchased by her is fully entitled to occupy and use the same according to her need and cannot be forced to depend upon the volition of the other co-sharers of the building including her mother-in-law and her husband to allow her to use their portions as ingress and egress. It has also been argued that both the courts below have deviated from the main question in the suit as to whether the tenanted premises was the only independent passage/opening to the purchased portion of the plaintiff available to the plaintiff, and have wrongly concentrated on the question whether the tenanted premises was earlier used as passage or not which question was entirely immaterial. It has been contended that the right to have passage by evicting the tenant from the tenanted premises has been recognised in law as bona fide and reasonable necessity but both the courts below have wrongly approached the matter. It has also been contended that the question of partial eviction does not arise in the facts and circumstances where the defendant has also admitted the suit premises to be a small area and the appellate court below has also held that there was no scope for considering the issue of partial eviction in view of the smaller area of the suit premises. It has also been submitted that the plaintiff has been living in a tenanted house as she is unable to freely use the premises purchased by her due to absence of and independent passage/opening to it. The learned counsel has also placed reliance upon the decisions in the case of Kunhamma v. Akkali Purushothaman, (2007)11 SCC 181, Pushkar Singh v. Ansuiya, 2006 (4)PLJR (SC)54 and Deo Narain Sah v. Chano Kumari, 2006 (3) PLJR 221 to fortify his contentions.
14. Mr. Sahi, learned senior counsel appearing on behalf of the respondent, while supporting the impugned judgments, has submitted that it is explicit from the admitted facts that the passage/opening to her purchased portion in the building is available to the plaintiff from her husband?s allotted portion and also from the portion allotted to her mother-in-law in the building and in this backdrop the requirement of the plaintiff for the suit premises cannot be said to be bona fide and reasonable. It has been canvassed that according to the provision of Section 11 1(c) B.B.C. Act, the need of the landlord for the suit premises must be for his /her own occupation and the need of the suit premises for use as passage has not been recognised as bona fide personal necessity. The reliance in this regard has been placed on a Bench decision of this Court in the case of Sri Ratan Lal Rai v. Sri Sheo Kumar Kamalia, 1996 (1) PLJR 216. It has also been contended that the entire case as set up by the plaintiff has correctly been found by the courts below to be a ploy to oust the defendant from the suit premises and this becomes more apparent when the mother-in-law of the plaintiff did not turn up in the suit to support the plaintiff. It has further been submitted that there is no evidence by the plaintiff that she has strained relationship with her husband also. It has also been argued that the suit shop is the only source of livelihood of the defendant and her eviction cause her non-irreparable loss and injury in comparison to the need of the suit premises as pleaded by the plaintiff. It has been finally submitted that since the appellate court below has passed the judgment of affirmance there was no need to deal with each and every piece of evidence and the said judgment cannot be said to be vitiated on that score and the substantial questions of law as formulated are not at all involved in this appeal.
15. After perusal of the judgments of both the courts below and considering the rival submissions on behalf of the parties, it is manifest that there is no dispute to the fact that the defendant is the tenant of the plaintiff. The suit has been filed for eviction of the defendant on the ground of personal necessity and default in payment of rent. On both these issues the trial court and appellate court have recorded concurrent findings that the plaintiff has failed to establish bona fide and reasonable personal necessity of the suit house and also the default in payment of rent by the defendant as claimed. As mentioned earlier, in the present second appeal, the relief for grant of a decree for eviction on the ground of default in payment of rent has not been pressed by the plaintiff-appellant and the submissions on behalf of the parties have been confined to the legal sustainability of the findings by the courts below on the issue of bona fide and reasonable requirement of the suit premises by the plaintiff.
16. From the perusal of the averments made in the plaint and the rough sketch map appended thereto as Schedule-B, it is apparent that the suit premises is 6 ft wide from north to south and 28 ''10'' from east to west and is situated in the south-east corner of the part of the building which was admittedly allotted in the share of the father-in-law of the plaintiff by a decree of partition with his co-sharers. The eastern side of the said part of the building including the suit shop abuts the main road known as G.B.Road. It is not in dispute that the plaintiff''s father-in-law died leaving behind his widow and three sons including the husband of the plaintiff who came in joint possession of the part of the building allotted in the share of the plaintiff''s father-in-law. The plaintiff''s case is that after the death of her father-in-law there was partition among his descendants and in the said partition the western portion of the building was allotted to the mother-in-law of the plaintiff and the eastern portion was allotted to the husband of the plaintiff. The two brothers of the plaintiff were allotted their respective shares in the middle of the building. The plaintiff has purchased the said shares of the two brothers by registered sale deed dated 13.08.1996 executed by them in favour of the plaintiff. It has been averred in the plaint that the building has a passage/door in the western side which opens in the lane leading to G.B.Road and the said passage and door were used by the family members till partition wherein the western portion including the passage and door was allotted in the share of the mother-in-law of the plaintiff. The plaintiff has also pleaded that the suit premises was earlier a passage with opening on G.B. Road but in view of the existence of passage and door in the western side, the said passage was let out to the defendant on rent for use as shop. It has been further pleaded that the vendors of the plaintiff were allotted their respective shares in the building along with the suit premises as passage and opening for their ingress and egress to their allotted portions. It be apt here to take into notice the specific material averments made in the plaint with regard to the personal necessity as follows:
"Para 9. That the said southern passage, abutting to G.B.Road, was not in use because the then joint family were using the western side passage, which has a opening in the lane and as such the ancestor of the plaintiff let out the portion to the defendant.
Para 13. That after purchase, and being the owner, she placed her difficulty before the defendant and requested her to vacate the premises as the said Shrimati Ratanmala Shee is pressing hard for using the personal passage purchased by her, and if the plaintiff will not do so then the said Srimati Ratan Mala Shee told the plaintiff on 25th day of August, 1996 that she will put the separation wall and thereby close the western passage.
Para 14. That accordingly the plaintiff gave a notice in writing, requesting you to vacate the passage occupied by you (defendant) within one month, so that the passage occupied by the defendant may be used for egress and ingress in the portion purchased by the plaintiff. Para
15. That the defendant knowing the fact that this is the only passage, occupied by them, through which plaintiff can reach to her purchased portion and there is no other passage for the egress and ingress in the plaintiff''s purchased portion, but the defendant instead of adhering the legal demand of the plaintiff��"
Para 16. That from the submissions made above, it be clear that the plaintiff is in bona fide personal necessity of the shop in question, as the said shop is situated on the only passage through which plaintiff can use the portion she has purchased���"
17. From the aforesaid averments the specific pleading of the plaintiff is apparent that there are two passages /openings in the building out of which one is in the western portion which was in use by the joint family members and the other passage/opening in the south-east portion was not used as passage or opening and so let out to the defendant as a shop. It is also lucent from the aforesaid averments in the plaint that the plaintiff''s explicit purpose for seeking eviction of the defendant from the suit premises is for using the same as passage/opening to the middle portion of the building purchased by her. It further be apt here to take into notice the recitals in the sale deed dated 13.08.1996 (Ext.1) through which the plaintiff has purchased the shares of the two brothers in the building and where the description of the property subject matter of the sale has been given as follows:
"fodz; lEink% {ks=Qy 257 nks lkS lUrkou oxZ QhV tehu csyxku ftlesa 125 ,d lkS iPphl oxZ QhV esa edku iDdk iqjkuk ,d eathy dk cuk gS ftldk lnj njoktk nf{k.k dh vksj fodzsrk }kjk 6 Ng QhV pkSM+k NksM+k x;k jkLrk ls gksdj jgsxk tks vkxs tkdj iwjc vksj lM+d ij ehy tkrk gS-----"
18. A map(site plan) of the existing building with the sold portion of the building denoted in red colour has also been appended with the sale deed (Ext.1). From the perusal of this map as well as the rough sketch map appended as Schedule-B of the plaint, it becomes manifest that the purchased portion of the building has no independent opening of its own because in the western side lies the share in the building allotted to the mother-in-law of the plaintiff and in the eastern side lies the share in the building allotted to the husband of the plaintiff in the building. It is also evident that there are only three possibilities before the plaintiff for ingress and egress in her purchased portion. The first possibility is by going through the western portion allotted to her mother-in-law and the second possibility is by going through the portion of the building allotted to her husband in the eastern side. Both these possibilities involve the express permission of those persons for the use of their portions as the passage/opening by the plaintiff. The third and the last possibility before the plaintiff is the use of the area /portion which is the suit premises belonging to the plaintiff as a passage/opening and in fact the plaintiff has opted for this third possibility by filing the suit seeking eviction of the defendant from the suit premises for the purpose of using the same as passage/opening.
19. From the averments made in the additional written statement by the defendant, it is clear that the defendant has accepted the plaintiff as her landlord and has stated to have paid rent of the suit premises to the plaintiff. It has also been significantly averred therein that the defendant started paying rent to the plaintiff after getting the knowledge regarding the purchase of the suit premises by her. Though the defendant in her written statement has endeavoured to create doubts over the case of the plaintiff of partition of the building and the allotment of specific shares therein to the co-sharers by raising various pleas including the plea of non-allotment of any share to the two sisters of the plaintiff''s husband but the very fact that the defendant has accepted to have recognised the plaintiff as her landlord after the purchase by the plaintiff of the shares of the two brothers of her husband in the building along with the suit premises as passage/opening, these objections lose their credence and substance. Even otherwise also the fact cannot be ignored that the two co-sharers (vendors of the plaintiff) in the building could not have transferred by sale the specific portions in the middle of the building without partition and without any objection by the other co-sharers. There is no material or evidence on record to show that the purchase by the plaintiff of the middle portion of the building along with the suit premises was ever objected by other co-sharers and so far as the defendant is concerned, she has accepted the said sale and has acted upon that basis by paying rent to the plaintiff. In this backdrop , the conclusion is inevitable that the case of the plaintiff regarding partition of the building including the suit premises and the purchase of the plaintiff of the middle portion of the building along with the suit premises could not have been legally resisted by the defendant. This Court thus finds substance in the submission on behalf of the appellant that the trial court has entirely misdirected itself discarding the case of the plaintiff by largely dwelling upon the legality and validity of the partition of the building as pleaded by the plaintiff and exploring the possibility of other passage/opening available to the plaintiff, and the appellate court has mechanically affirmed the findings of the trial court ignoring the material pleadings and evidence.
20. After reaching to the conclusion that the defendant has accepted the plaintiff to be her landlord after her purchase of the middle portion of the building along with the suit premises from the co-sharers to whom it has been allotted on partition, the issue of bona fide and reasonable requirement of the suit premises by the plaintiff is now to be considered. It is the specific case of the plaintiff that she requires the suit premises for use of the same as passage and opening to her purchased portion in the building. It has been argued on behalf of the defendant-respondent that the personal necessity of the landlord must be for the occupation of the suit premises for residential purposes and any other purpose including the use of the suit premises as passage/opening cannot be said to be bona fide and reasonable personal necessity of the landlord. Reliance has been placed upon a bench decision of this Court in the case of Sri Ratan Lal Rai (Supra). This submission , however, cannot be legally sustained in view of the later decision of the apex court in the case of Kunhamma (Supra) where their lordships have laid down as follows:
10. "�We have considered the arguments advanced by the learned counsel in the light of the law and the facts brought out before us. It is virtually the accepted position since long that the personal necessity envisaged under the Act include re-possession of the demised premises by the landlord for the purposes of its demolition so as to widen the entrance to another building belonging to the landlord in the immediate vicinity. In Ramniklal Pitambardas Mehta''s case it was observed as under:- (AIR p.1680, para 20)
"20. � �Occupation of the premises in clause (g) does not necessarily refer to occupation as residence. The owner can occupy a place by making use of it in any manner. In a case like the present, if the plaintiff''s on getting possession start their work of demolition within the prescribed period, they have occupied the premises in order to erect a building fit for their occupation."
11. The observations of the Privy Council are much to the same effect. In K. Menon case the court reinforced its opinion by an analogy and by putting a hypothetical question to itself: (KLT p.134, para5)
"Can he not use the space occupied by the old building as car park, or as passage to the new building? If he cannot do so, the entire rear portion may become practically useless. This be one of the hard consequences if Section 11 (3) of the Act is given a narrow or strict interpretation. Such consequences can be averted if Section 11(3) is given a wider interpretation,�"
21. As aforenoticed on the basis of the map (site plan) annexed with the sale deed (Ext.1) and the rough sketch map appended to in Schedule-B to the plaint, there are only three possibilities before the plaintiff for passage/opening for the purpose of egress and ingress in her purchased portion. The two possibilities are demonstrably dependent upon the volition and express permission, either of the mother-in-law or of the husband of the plaintiff to have their respective portions in western and eastern side of the purchased portion of the plaintiff regularly used by the plaintiff as passage/opening. In this context, it is also remarkable that in the judgments of both the courts below also the fact has not been ruled out that the plaintiff has the necessity for passage/opening for ingress and egress in her purchased portion but both the courts below have completely failed to advert to the said necessity from the perspective of the plaintiff having an independent passage/opening for which the suit premises is the only available option. The trial court has refused the eviction decree for the suit premises in this regard on the ground that the plaintiff has failed to establish strained relationship with her mother-in-law or her husband and therefore she has the option to use the portions allotted to her mother-in-law or her husband in the building as passage/opening of her purchased portion. The appellate court below has also given a queer reasoning that the plaintiff being "Ardhangani" of her husband can utilise the portion allotted to her husband as passage/opening for egress and ingress in her purchased portion. Moreover in coming to the aforesaid conclusion both the courts below have also ignored the registered notice (Ext.7) sent by Smt. Ratan Mala Shee, mother-in-law of the plaintiff, wherein she declared her intention to prohibit the ingress and egress of the plaintiff through the western portion allotted to her (mother-in-law) by putting up a wall from her side . There is no evidence on record from the side of the defendant to establish that the registered notice (Ext.7) has no credibility and the mother-in-law of the plaintiff will readily allow the plaintiff to use the passage/opening through her allotted western portion. The courts below have also ignored the deposition of the plaintiff examined as P.W.8 where she has given reasons ruling out the other options, as follows:
"13---- caVokjk ds eqrkfcd iwjc rjQ okyk fgLlk ifr dks feyk rFkk lVs mlds if''pe liu dks feyk rFkk mls lVs if''pe vHk; dks feykA liu dks tks feyk mls ?kh dh nqdku ls fudyus dk jkLrk feyk----
15--- eq>s vius ifr ds tk;nkn ls dksbZ eryc ugha gSA eSa vius ifr ds lkFk gh vk;h gwWa--- ifr ds fgLls ls eSa vyx&tkuk ugha pkgrh D;ksafd ckn esa os D;k djsxsa ugha dg ldrhA ifr ls vius ugha dgh fd gesa jkLrk ns nhft,A
17--- esjh lklq ls laca/k bl [kjhnkjh ds ckn ls gh [kjkc gqvk gSA [kjhnkjh esa lklw dh bPNk Fkh fd csVs eq>s u cspsaA gekjk lklq ds lkFk >xM+k gqvk gS eqdnesa ckth ugha gqbZ] [kjh&[kksVh ckrksa ds fy, lugk ugha dhA"
22. It is thus evincible from the impugned judgments of both the courts below that though the necessity of the plaintiff to have a passage/opening to her purchased portion has not been discarded but the same has been played down primarily on the ground that the plaintiff has the option to have her passage/opening from the western side or eastern side of the building allotted respectively to the plaintiff''s mother-in-law and her husband as she has failed to establish the definite break down of her relationship with her mother-in-law or her husband. It be condign in the present context to notice the observations by their lordships in Sarla Ahuja v. United India Insurance Com. Ltd., AIR 1999 SC 100.
14. "�When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the questions of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
15. "�Facts such as the cordial relationship between a landlord and her daughter-in-law or that he is comfortably residing in the present building are not relevant in adjudging the bona fides of the claim of the landlord. Otherwise it appear that landlord can think of residing in his or her own residential building only when the cracks develop in the relationship between him and his other kith and kin..."
(emphasis supplied)
23. While considering the elements of reasonableness and bonafides in the plea of personal necessity of the landlord, the apex court in the case of Raghunath G. Panhale v. M/s. Chaganlal Sundarji and Co., AIR 1999 SC 3864 has emphasised that the necessity of the plaintiff is not required to be a compelling or dire necessity. The principle in this regard has been spelt out as follows:
"�.6. The word `reasonable'', in our view, connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word `requirement'' coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. Aitken v. Shaw, (1933) S.L.T, 21; Novile v. Hordy, 90 L.J. Ch, 158. A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in presenti or within reasonable proximity in the future. The use of the word ''bona fide'' is an additional requirement under Section 13(1)(g) and it means that the requirement must also be honest and not be tainted with any oblique motive.
7. The above principles have been laid down in various decisions of this Court and we shall refer to a few of them which are relevant to the issue before us. It was stated in Bega Begum & Others v. Abdul Ahad Khan & Others, 1979 (1) SCC 273 that the reasonable requirement postulates an element of need" as opposed to a mere "desire or wish". It was also pointed out that if it was indeed a case of a reasonable need, the same could not be diluted by characterising it as only a mere desire. It was stated (Para 13 of AIR):
"The distinction between desire and need should doubtless be kept in mind but not so as to make even a genuine need as nothing but a desire".
It was also held that the language of the provision cannot be unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get possession. If more limitations are imposed upon the landlord holding property, it expose itself to the vice of unconstitutionality. Yudhishtir v. Ashok Kumar, 1987 (1) SCC 204 : AIR 1987 SC 558. The construction of the relevant statutory provision must strike a just balance between the right of the landlord and the right of the tenant. In Bega Begum''s case, AIR 1979 SC 272, the landlords adduced evidence to show that they wanted to augment their present income by starting hotel business. This was treated as a genuine need and it was held that it could not be equated with a mere desire. This Court observed that "the Act does not completely overlook the interest of the landlord".
24. The dictum laid down by the apex court in the case of Mohd. Ayub v. Mukesh Chand, 2012 (2) SCC 155 can also be appropriately noticed as follows:
15. "� It is well settled the landlord?s requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants? case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of non-vegetarian food. It is for the landlord to decide which business he wants to do. The court cannot advise him. Similarly, length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the courts below�."
25. Similarly in Ragavendra Kumar v. Firm Prem Machinery and Company, (2000)1 SCC 679 their lordships have laid down that the landlord is the best judge of his requirement for residential or business purposes and he has got complete freedom in the matter.
26. In the present case both the courts below appear to have been swayed away by the fact that the plaintiff can have also the passage/opening other than by getting vacant possession of the suit premises but they have ignored the well laid principles as above-mentioned that the plaintiff can not be compelled to seek permission and depend upon the volition of others for use of their property by way of passage/opening for ingress and egress in her purchased portion. The court have also ignored the possibility of denial of such permission to the plaintiff by others either in presenti or in future which circumstance again leave the plaintiff without any passage/opening to her purchased portion.
27. Testing the findings of both the courts below on the anvil of the principles laid down by the apex court in this regard as above mentioned the inference becomes inevitable that those findings cannot be sustained in law as the same for the most part are based upon the surmises and conjectures and against the well settled principles of law compelling the plaintiff to think of having independent passage/opening in her purchased portion, in the words of their lordships, ''only when the cracks develop in the relationship'' with her kith and kin. This Court therefore comes to the conclusion that the plaintiff has got the bona fide and reasonable personal necessity of the suit premises for use of the same as passage/opening to the portion of the building purchased by her.
28. So far as the question of partial eviction of the defendant from the suit premises is concerned, this aspect has been considered by the appellate court below and it has been found that the partial eviction not serve the purpose in view of the small area of the suit premises which is only 28?10? from east to west and 6'' from north to south. There is no cross objection by the defendant against this finding by the appellate court below nor any submission in this regard has been made on behalf of the defendant respondents during the course of arguments expressing the agreement to partial eviction from the suit premises. Even otherwise also in paragraph-12 of the written statement it has been stated that only the nominal portion of the holding in the suit is in occupation of the defendant as tenant. From the map(site plan) attached with the sale deed (Ext.1) and the rough sketch map appended as Schedule-B to the plaint, it is evident that the suit premises has only 6? wide opening on the main road (G.B.Road) and the feasibility of occupation of the same both by the plaintiff and the defendant is remote. In this fact situation, this Court comes to the conclusion that the partial eviction of the defendant-tenant from the suit premises not satisfy the need of the plaintiff.
29. For the aforesaid reasons and discussions the substantial questions of law, as formulated, are answered in favour of the plaintiff-appellant and this Court holds that the plaintiff has succeeded in establishing the personal necessity of the suit premises and is entitled to the eviction decree as prayed for eviction of the defendant from the suit premises.
30. This appeal is, accordingly, allowed and the impugned judgment and decree of both the courts below are hereby set aside. The Eviction Suit No. 42/96/12/98 is decreed and the defendant is directed to hand over the vacant possession of the suit premises to the plaintiff within a period of 90 (ninety) days, failing which the plaintiff shall be entitled to get vacant possession through the process of court. There shall however be no order as to costs.
