BHAGWANDAS TRILOKCHAND Vs. BHUNGODOMAL ZAMATMAL

JUDGEMENT

(1.) The petitioner herein is the original plaintiff of Regular Civil Suit No.34 of 1975. Aforesaid suit was filed in the Court of the learned Civil Judge (J.D.), Kutiyana, against one Shirumal Zamatmal and four others. Said Shirumal Zamatmal died during the pendency of the suit and, therefore, his heir Bhungdomal Zamatmal was brought on record, but during the pendency of the appeal, he also died and, therefore, heirs of Bhungdomal were also brought on record before the appellate court, who are present respondent Nos. 1/1 to 1/6 herein.

(2.) It is the case of the plaintiff in the suit that the property in Kutiyana town at M.G. Road was an evacuee property. Part of the suit premises was purchased by the plaintiff by registered sale deed dated 7.1.1975 from the power-of-attorney holder of original owner Bhagwandas Vatumal and Reemandas Chuhdmal and from the date of the said purchase, the plaintiff has become the owner of the suit property. According to the plaintiff, shop No.1 of the suit premises as well as one small room on the back side of the suit premises was initially allotted to said Shirumal by the Custodian at the rate of Rs.1.50 Ps. p.m. According to the plaintiff, said Shirumal, i.e. defendant No.1, was the only allottee and, therefore, except occupying tenancy right, he had no other right in the suit property. Still, however, the shop in question as well as the small room is transferred by the defendant No.1 to defendant No.2, Bhungdomal illegally and accordingly, he has transferred the suit property illegally to defendant No.2 and, thereafter, defendant No.2 left the aforesaid place Kutiyana and had gone to another town Girgadhada and at that time, defendant No.2 has further sub-let the suit premises to defendant Nos. 3, 4 and 5. Defendant Nos. 3, 4 and 5 are the real brothers and they are occupying the suit premises and they are doing business jointly in the name of Maheshkumar and that they are doing the business of milk and curd in the suit premises. It is also the case of the plaintiff that they have made some alteration in the suit premises and has made certain constructions. Therefore, they decided to evict the defendants from the suit premises. For that purpose, he gave registered notice dated 31.3.1975. Since the defendant failed to comply with the said notice, aforesaid suit was filed for getting possession from the defendants.

(3.) Aforesaid suit was resisted by the defendant Nos.1, 4 and 5 by filing written statement at Exhibit 10. Defendant No.2 filed his written statement at Exhibit 11 and defendant No.3 has filed his written statement at Exhibit 12. The original defendant No.1 died during the pendency of the suit and, therefore, his younger brother was brought on record. It was admitted by the defendants that the original defendant No.1 Shirumal was allotted the premises by the Custodian. However, they denied that he had no tenancy right in the suit premises. It was further stated that the defendant No.1 was doing business in partnership with defendant No.2 and at that time, Rent Act was not applicable to the premises as the same was of the ownership of Government. According to the defendants, the partnership between the defendant Nos. 1 and 2 continued upto 1966. Thereafter, the said firm was dissolved and the defendant No.2 left Kutiyana. But all throughout, the defendant No.1 continued with the possession of the suit premises. It was also the say of the defendants that the defendant No.1 Shirumal started his partnership business on 13.1.1966 in the name of "Maheshkumar Sugnomal" and that said business is a partnership business with defendant Nos. 4 and 5. It was also the say of the defendants that defendant No.3 has nothing to do with the said business as he was serving as a teacher at the relevant time and he used to merely help his brothers in the said partnership business. It is also stated that the defendant No.1 has never parted with possession of the suit property. Aforesaid suit was accordingly resisted by the defendant Nos. 1, 4 and 5. So far as defendant No.2 is concerned, he also denied the suit of the plaintiff by filing written statement at Exhibit 11. According to him, he entered into partnership with defendant No.1, initially, but, thereafter, sometime in the year 1966, the said business was dissolved and thereafter, he was not concerned with the aforesaid business in any manner. He also pointed out that defendant No.1 Shirumal had never given him possession of the suit property and that the tenancy rights had all throughout remained with the defendant No.1. According to him, he was wrongly joined as party to the suit. Defendant No.3 also denied the suit of the plaintiff.