PRIYAMVADAN MAGANLAL PATEL Vs. HARIBHAI VISWANATH SHUKLA

JUDGEMENT

(1.) The petitioner is the original plaintiff, who instituted a suit, being Regular Civil Suit No.59 of 1986, in the Court of Civil Judge (J.D.), Sihor. The plaintiff has filed the aforesaid suit for getting decree for possession of the suit premises from the defendant-tenant. The plaintiff is the owner of the property situated in Sihor Town known as Patel Building. The defendant was let out two rooms of Patel Building at a monthly rent of Rs.35.00 for residential purpose. The case of the plaintiff is that the defendant has not paid the rent from 1.1.1982 and that he has also made some changes in the suit property. It is also the case of the plaintiff that the defendant has changed the user of the suit premises from residential to business and the wife of the son of the defendant, one Maltiben, has started business in the name of Shradhha Beauty Parlour. It is also the case of the plaintiff that the defendant has purchased alternative premises at Sarkhej Road in the City of Ahmedabad in the name of his son's wife Maltiben Shukla, being Flat No.9, and has obtained the possession of the same. The defendant has also purchased an Open Plot of 500 sq.yards in Sihor town, which he has sold during the pendency of the suit. During the pendency of the suit, the plaintiff gave an application for amendment of the plaint on the ground that during the pendency of the suit, the defendant has also purchased a two storeyed building in the name of his two sons in Patel Building in Sihor Town. The case of the plaintiff is that since, the defendant has acquired alternative accommodation, he is required to be evicted from the suit premises. The plaintiff, after serving notice on the defendant, filed the aforesaid suit for getting possession of the suit premises on the aforesaid grounds, as well as, he has claimed decree on the ground of arrears of rent.

(2.) The aforesaid suit, was, resisted by the defendant on various grounds. The defendant denied the claim of the plaintiff for getting decree for possession on the grounds of arrears of rent, as according to the defendant, he has paid the entire rent, which was accepted by the plaintiff. The defendant also denied the fact that he has made an alteration in the suit premises in any manner. The defendant also denied the claim of the plaintiff that the wife of the son of the defendant has started any beauty parlour in the rented premises. The defendant also denied the case of the plaintiff that he has purchased alternative premises in Ahmedabad on Sarkhej Road. The defendant has also denied the say of the plaintiff that he has constructed a house in Sihor. The defendant has stated that the said house is constructed by his sons who are staying separately. On this and such other grounds, the suit of the plaintiff was resisted by the defendant.

(3.) The Trial Court, after recording the evidence of the parties, and after considering the arguments of the parties came to the conclusion, that the plaintiff has failed to prove that the defendant is in arrears of rent. The Trial Court found that the plaintiff has failed to prove that the defendant has not used the suit property. The Trial Court, came to the conclusion, that the plaintiff has failed to prove any of the grounds raised in the plaint for getting decree of possession. The Trial Court dismissed the suit on all counts. Regarding acquisition of alternative accommodation, the Trial Court found that so far the premises which is constructed in Sihor town in Patel Building is concerned, the same is purchased by the defendant from his own income in the name of his sons Milankumar and Atulkumar. The Trial Court also found that the said house is in the control of the defendant and that the defendant can even go and occupy the said premises alongwith his sons. The said finding is given by the Trial Court in Para 87 of its judgement. The Trial Court, however, found that the premises in Patel Building is acquired on 28.6.1988. As against that, the suit is filed earlier i.e. on 24.9.1986. The Trial Court, accordingly, found that the said premises was not available on the date when the suit was filed and therefore, negativing the ground of acquisition of alternative premises, the Trial Court has dismissed the claim of the plaintiff. The relevant observations of the Trial Court are in Para 93 of the judgement. The Trial Court also dismissed the application preferred by the tenant for fixation of standard rent and the Trial Court found that the rent of the suit premises is Rs.35/= per month. The Trial Court, accordingly, dismissed the said suit.