ATTAR CHAND JAIN Vs. SUDHIR KUMAR JAIN

JUDGEMENT

(1.) In pursuance of the auction purchaser (Attar Chand Jain) having been successful purchaser of the property in question, he has preferred the application, alleging that the sale in his favour was confirmed on 12.2.1999. The property is stated to be in occupation of Surender Kumar Jain and Devinder Kumar jain (for short "the Objectors") or on behalf of Judgment debtors by Sunil Kumar Jain and Sanjay Kurnar Jain (sons of Surender Kumar Jain), it is prayed that warrants of possession should be issued for delivery of the physical possession of the suit premises to the auction purchaser.

(2.) In reply/objections filed, it has been alleged that the property in dispute had been purchased by Lala Ram Chand. On the ground floor, the business was started under the name and style of M/s.Kedar Nath Ram Chand. The said business was dissolved on Asad Sadi 12, Samvat 1998 (equivalent to 6.7.1941). Thereafter, Nem Chand and Moti Lal started a partnership business under the name and style of M/s.Nem Chand & Brothers in this very shop. The property was let by Ram Chand @ Rs.25.00 per month. The business of M/s.Nem Chand & Brothers was subsequently dissolved on 8.7.1956. Thereafter, decree-holder alongwith Moti Lal and Nem Chand started the business under the name and style of Kedar Nath Ram Chand . The said business continued in this very shop. The partnership, referred to above, was dissolved on 3.11.1959. Decree-holder Attar Chand Jain separated from the business of M/s.Kedar Nath Ram Chand and allowed the business to run from this shop. The other partners i.e. Moti Lal and Nem Chand continued the business under this very name. On 17.6.1961 Shri Moti Lal, judgment-debtor also separated himself from the business being run by the firm Kedar Nath Ram Chand. Vide partnership deed of 11.9.1961, Nem Chand, a co-owner also associated Surender Kumar Jain along with Dhanender Kumar Jain. They kept on carrying on the business under the name and style of Kedar Nath Ram Chand. It is pleaded that this partnership was also dissolved through the dissolution deed of 8.7.1966. Nem Chand (judgment-debtor) and Dhanender Kumar Jain left the business. It was taken over by Surender Kumar and Devinder Kumar. To this effect, a partnership deed of 8.7.1966 was executed. This was well within the knowledge of the decree-holder, who did not raise his little finger on holding of the shop by Kedar Nath Ram Chand as tenants. It is pleaded, thus, that from the very beginning, Kedar Nath Ram Chand are in occupation of the shop as tenant and decree-holder has no right to ask for the vacant possession or to compel the firm to vacate under the provisions of Order XXI Rule 95 of the Code of Civil Procedure. It is pleaded that the partnership is still in existence and carrying on the business under the name and style of M/s.Kedar Nath Ram Chand. Plea has also been raised that in the suit that was filed by the auction purchaser, number of issues had been framed and one of the issue was whether Kedar Nath Ram Chand are in occupation of the shop as a tenant. Lateron at the request of the auction purchaser, the issue was dropped to be superfluous.

(3.) It has further been alleged that during the life time of Nem Chand Jain, he had executed a Mill dated 3.6.1977. In the said Will, it was declared that Nem Chand was the owner of 1/3rd share of the property. The auction purchaser was an attesting witness to the will and it was mentioned in the will that Kedar Nafch Ram Chand were the tenant therein. Thus the auction purchaser is estopped from claiming that the objectors are not the tenants in the property.