POPATLAL VADILAL BHANSALI Vs. KASTURBHAI RANCHHODBHAI SONI

JUDGEMENT

(1.) THIS Revision Application has been preferred by the petitioners-original defendants-tenants against the judgment and order dated 30-8-2002 in Regular Civil Appeal No. 31 of 1997 passed by the 5th Extra Assistant Judge, Kheda at Nadiad whereby the judgment and decree dated 10-2- 1997 in Regular Civil Suit No. 338 of 1990 passed by the 5th Joint Civil Judge (S.D.), Nadiad for recovery of actual, vacant and physical possession of the suit shop from the defendants has been confirmed.

(2.) THE petitioner No. 1-Popatlal Vadilal Bhansali is the original tenant of the suit property which was rented to him for business purpose. The petitioner No. 1 was doing his business of hosiery and ready-made clothes in the name and style of Deepmala Dresses. Thereafter, that business name was changed and the firm Parth Jewellers was started in the suit premises. The respondents- plaintiffs did not see the petitioner No. 1 sitting regularly in the suit shop. Hence, they filed Regular Civil Suit No. 338 of 1990 against the petitioners-defendants for vacant possession of the suit shop from the defendants and for the recovery of Rs. 170/- p.m. from the person and property of the defendant No. 1 and also damages of Rs. 170/- from 1-5-1990 for not using the suit shop and arrears of rent from the defendants. In the suit, the plaintiffs also prayed for Rs. 85/- from the date of the suit till the date of possession from the defendant No. 1 together with municipal taxes, education tax and other taxes by way of mesne profits along with costs of the suit. It is stated in the plaint that the defendant No. 1 was the tenant of the previous landlady Revaben. From her, the defendant No. 1 has taken the suit shop on rent for Rs. 85/- per month as standard rent. Municipal taxes, education tax and other taxes were to be paid by the defendant No. 1. The defendant No. 1 was carrying on his business of ready-made clothes and hosiery in the name and style of Deepmala Dresses. It is also stated that the defendant No. 1 has been intending to illegally sub-let, assign or transfer the suit premises by leave and licence and he has sub-let by leave and license or by any other mode and assigned or transferred physical possession of the suit shop to the defendant No. 2 by executing a bogus and false partnership- deed. The defendant No. 1 has put a false date on the partnership-deed which was prior to the service of ad-interim injunction granted to him. The defendant No. 1 has handed over physical possession of the suit property. Hence, the suit. The defendant No. 1 has paid rent upto 1-5-1990. Thereafter, he has not paid any rent.

(3.) AFTER recording evidence and after hearing the arguments of the learned Advocates for the parties, the trial Court has recorded a finding that under camouflaged partnership-deed, the defendant No. 1 has sub-let the suit shop to defendant Nos. 2 to 5 and by its judgment and decree dated 10th February, 1997 decreed the suit with costs for recovery of actual and vacant possession of the suit shop from the defendants. The defendants were also directed to hand over vacant possession of the suit shop to the plaintiffs within two months from the date of the order. Being aggrieved and dissatisfied with the judgment and decree of the trial Court, the petitioners-original defendants-tenants filed Regular Civil Appeal No. 31 of 1997 before the District Court. After appreciating the evidence of the parties on record and after considering the arguments of the learned Advocates for both the parties, the lower appellate Court vide its judgment and order dated 30th August, 2002 dismissed the appeal and confirmed the judgment and decree of the trial Court.