RAGHUNATH PRASAD Vs. GULAB SINGH

JUDGEMENT

(1.) This second appeal by the defendant is directed against the judgment and decree dated 22nd April, 1981 passed by the Addl. District Judge, Delhi whereby the first appeal filed by the plaintiff was allowed and his suit for possession of the shop in dispute was decreed.

(2.) In this suit for possession it was alleged that Raghunath Prasad, the defendant was a tenant of shop No. 2728 situated at Sarai Fasil, Naya Bazar, Delhi at a monthly rental of Rs, 8.20 under the Delhi Warf board. The plaintiff took the said shop on rent from the said Raghunath Prasad in the year 1944 at a monthly rental of Rs. 8.00 and the rent was thereafter increased to Rs. 16.40 per month The plaintiff used to pay a sum of Rs. 8.20 to Delhi Wakf Board and the remaining sum of Rs. 8 20 was paid to the defendant. The Sub-tenancy was created with the permission of Jamait-e- ulm-a-Hind, the then landlord of the shop from whom the property was transferred to Delhi Wakf Board. The fact of subletting was also made known to the Wakf Board who had been accepting the rent from the plaintiff with the full knowledge of subletting of the premises to the plaintiff by the defendant. Thereafter the plaintiff has been paying rent directly to Delhi Wakf Board as well as to Jamait-e-Ulm-a-Hind since the very inception of the sub-tenancy and the rent receipts up to July 1969 are in possession of the plaintiff. The plaintiff has been carrying on the fuel ration business as well as the business of motor transport in shops Nos. 2728 and 2729 Sarai Fasil, Naya Bazar, Delhi. The entry to that effect finds place in various records. The plaintiff is also in possession of coal licence from the Controller of rationing at the address of shops Nos. 2728 and 2729. The defendant who is real brother of the plaintiff felt jealous of his business and tried to forcibly evict the plaintiff with the help of Gundas and bad characters. Finally on 26th July, 1969 the plaintiff and his sons as well as the defendant were arrested by the police when the defendant tried to dispossess the plaintiff from the said shop. The defendant, however, in the absence of the plaintiff broke open the locks and forcibly took possession of the shop. The defendant has now put his locks on the shop after breaking open the locks of the plaintiff.

(3.) The suit was contested by the defendants. Besides rasing the- pleas regarding the court fee and jurisdiction, it was pleaded that the defendant has throughout been in possession of the shop and had never sublet the same to the plaintiff. It was further pleaded that the plaintiff being the younger brother of the defendant, the business in the shop in dispute as well as the shop bearing No. 2729 which is a part of the joint family house of the parties and other family members, always belonged to the joint Hindu family although it was carried on in the names of different persons from time to time. In the additional pleas, it was stated that the plaintiff and the defendant have late been doing business jointly. The defendant was the financing partner in the fuel business carried on in the name of the plaintiff. The plaintiff later on became dishonest and, tried to grab the whole of the business and the capital; invested by; the defendant to himself and that is why the relationship between the parties was spoiled. According to the defendant,. the present suit was instituted a,t the iostigatioa of the other persons and is based on false and malicious pleas.