SATTAR MOHAMMAD CHOUDHARI Vs. GUNDAPPA AMABADAS BUKATE

JUDGEMENT

(1.) The landlord is in appeal before us against the Judgment and Order dated 17-1-1992 passed by the Bombay High Court (Aurangabad Bench) by which the judgment and Order dated 29-3-84 passed by the Rent Controller and that of District Judge, Latur passed on 12-2-1987, affirming that Judgment, were set aside and the suit of the appellant for eviction of the respondent from the shop in Municipal building No. 2-10 (Old) and 69 (New), Ward No. 22, Bhusar Lane, Latur, was dismissed.

(2.) Proceedings for eviction were initiated by the appellant on the allegations that the shop measuring 23x 19 was originally owned by his father Shaikh Modh. Chaudhari who died on 12th of March, 1956 leaving behind the appellant and his elder brother, Shaikh Jaffar, as also two other brothers, as his heirs who inherited his properties including the aforesaid shop. Shaikh Jaffar being the eldest was managing the property, particularly as the appellant was minor in 1964 when the shop was let out to the respondent who paid rent to Shaikh Jaffar and continued to pay it till 1974. In the meantime, there was a partition among the brothers and a portion of the shop measuring 23 x 12-1/2 fell in the share of the appellant who informed the respondent of the above and required him to pay rent to him. A similar information in writing was also given to the respondent by Shaikh Jaffar but the respondent did not pay rent to the appellant and consequently, his tenancy was terminated by notice dated 28-7-76. This was followed by a petition under Section 15 of the Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954 for the eviction of the respondent on the ground of wilful default in payment of rent as also for the personal need of the appellant who wanted to run his cutlery business in the said shop.

(3.) This petition was filed before the Rent Controller before whom the respondent, in his reply, raised the plea that the shop having been let out to him on behalf of several brothers, he could not be legally evicted at the instance of one of them as tenancy was indivisible. He pleaded that the petition was not maintainable. He also pleaded that the so-called partition amongst the brothers was mala fide and, in any case, notice for attornment was not given to him. He also pleaded that the shop was not bona fide required by the appellant and that, in any case, he was not a defaulter as he was all along tendering the rent to the landlord but the same was refused by him.