1. By way of this petition the petitioner has challenged the judgment and order of learned Joint District Judge, Panchmahals at Godhara for short (the Appellate Court) dated 02.08.1999 passed in regular Civil Appeal no. 16/1992 whereby the Appellate court allowed the appeal and set aside the judgment and decree dated 29.09.1992 passed by learned Civil Judge (JD) at Dahod in Regular Civil Suit No. 155/1986 and directed the petitioner herein to vacate the premise on the ground of alternate accommodation.
2. Brief facts of the petition are as under :
2.1 That the plaintiffs filed a regular Civil Suit No. 155/86 in the court of Civil Judge (J.D.) against the petitioners – defendants to recover possession of the suit premises with rent by alleging interalia that the premises bearing City Survey No. 403/2 situate in Rutampura Faliya, Dahod. The suit property was let out on the monthly rent of Rs. 8/- and the defendants are the tenants of the suit premises. That their mother deceased Khatiya gifted the suit premises to the opponent on 31.03.1977 and since then they became owner of the suit property. That the suit is to recovery possession of the suit premises on the ground of arrears of rent and that they require the suit premises bonafide for personal requirements and on the ground that the defendants have acquire suitable accommodation which is situated at Kala Zapa Dahod. It was further alleged that the defendant no. 2 being Government servant and as Govt. Servant he is allotted quarter. That the notice was served upon the respondent vide notice dated 17.06.1986, but having failed to comply with the same, the plaintiffs filed the present suit.
2.2 That the petitioners – defendants resisted the said suit by filing written statement contending interalia that the present rent of the suit premises is not stands rent as Rs. 4/- per month. It was denied that the plaintiffs have not paid rent from 01.02.1984 and further stated that the rent had been sent to the plaintiff by money order, but the plaintiffs intentionally refused the same. It was denied that the defendants are in arrears of rent as alleged by the plaintiffs. However, paid rent immediately on serving notice more than what is due. It was denied that the plaintiffs have no other alternative accommodation at Dahod. It was denied that the defendants acquired suitable accommodation in Kala Zapa area, but stated that it was purchased in the joint name of the defendants no. 2 and his deceased brother in-law which is used by the heirs of his brother in-law and they are owners of that property. It was denied that the facility of quarter allotted to the defendant no. 2 is not permanent and the upper portion of the premises is non-usable. It was denied that the premises in question require major repairing and that the major repairing is not possible without vacating the premises and thus prayed that the suit be dismissed with costs.
2.3 The trial court after framing the issues and hearing the parties was pleased to dismiss the suit by holding that none of the issue mainly arrears of rent, bonafide requirement and obtaining alternative accommodation by the defendants have been established by the plaintiffs and thus dismissed the suit.
2.4 That being aggrieved and dissatisfied with the judgment and decree dated 29.09.1992 by the Civil Judge (J.D.) Dahod in dismissing the Regular Civil Suit No. 155/86, the plaintiffs preferred Regular Civil Appeal No. 60/92 in the court of 2nd Joint District Judge Panchmahals at Godhra. That was allowed by passing a decree for possession against the defendants by further order in granting three months for handing over the possession of the premises.
2.5 Being aggrieved and dissatisfied by the aforesaid judgment, order and decree dated 02.08.1999 passed in Regular Civil Appeal No. 16/92 passed by Joint District Judge, Panchmahals at Godhra, the present revision application has been filed.
3. While allowing the appeal, the Appellate Court, has given its findings in para 16 which read as under :
“the list point which is very important point is that as the defendant has acquired suitable residence and when learned advocate for the plaintiff is able to prove that property is acquired by the defendants then burden is in that case, thereafter, shits on the shoulder of the defendant to disprove this face that the property acquired by him is not sufficient or suitable for staying in it. Defendants has not lead any evidence on this point on the contrary, defendant has admitted the fact that the property at Kalal Gate bearing survey no. 4009 is purchased by him and he is in possession of the property. That the learned Judge has wrongly decided that plaintiff is not able to prove that it is suitable property to him. Here, in this case, defendant no. 2 has also acquired a Government quarter and therefore, he is not residing in the premises, which was rented to him and the present defendant no. 1 was residing in property survey no. 4009 and therefore, there is no question of insufficient accommodation and hence, burden is on the defendant to prove that property owned or in possession by them is insufficient and hence, plaintiff has discharged his burden and is able to prove the fact that defendant has acquired the property. Under the circumstances, defendant has to hand over the possession on the ground of acquisition of the property, therefore, plaintiff has only succeeded on the point that defendant has acquired the property and therefore, I decided point no.
1 in partly affirmative.
4. In view of the findings of the Appellate Court, as the defendant no. 1 has acquired the other premises and defendant no.2 has gone to reside in the government quarter, which was allotted to him, this revision application does not survive.
5. At this stage, learned counsel for the petitioners pray for some time to allow the petitioners to vacate the premises. Hence, the view taken by the Appellate Court is just and proper as the rented premise is not occupied by any of the defendants and they have got suitable alternative accommodation. The revision applications devoid of any merits deserves to be dismissed and the same stands dismissed. Interests of justice and to allow the petitioner to vacate the premises, time is granted upto 31.07.2017 to vacate the premises. Both the petitioners will file undertaking within 30 days from today. If such undertaking is not filed within 30 days from today, interim relief of 5 years time will be vacated.
(K.S. Jhaveri, J.) Amar