P K THOMUS Vs. DHIMANTKUMAR KANTILAL SHAH

JUDGEMENT

(1.) The present revision application is directed against the judgment and decree, dated 19.3.1991, passed by the Assistant Judge, Surendranagar, in Regular Civil Appeal No.31 of 1986, by which the appellate Judge has allowed the appeal filed by the respondent-plaintiff and decreed the suit of the plaintiff for possession.

(2.) The respondent is the original plaintiff of Civil Suit No.102 of 1982, which was filed before the Civil Judge (Junior Division), Surendranagar. The case of the plaintiff is that the plaintiff is the owner of two shops situated opposite M.P. Shah Arts and Science College in the City of Surendranagar. The shops are described as "Shop Nos. 9 and 10". It is the say of the plaintiff that, out of the aforesaid two shops, Shop No.10 was let out to defendant No.1 at the rate of Rs.35.00 per month for the purpose of the business of defendant No.1 and Shop No.9 was let out to defendant No.2 for his business. In the present revision application, we are concerned with the dispute in connection with Shop No.10, which, according to the plaintiff, was let out to defendant No.1. The case of the plaintiff is that defendant No.1 has not paid rent from 1.10.1981 till 31.1.1982 and even though notice was served, he has sent the amount of rent with certain objections. It is also the case of the plaintiff that even though the shop in question was let out to defendant No.1 for his business, he is not using the same and he has handed over possession to his brother defendant No.2 by way of sub-tenancy. The suit, therefore, was filed for getting possession on the aforesaid two grounds, viz., arrears of rent as well as sub-letting. Additional ground was also pleaded in the plaint that defendant No.1 has closed his business and allowed defendant No.2 to use the suit premises for tyre moulding business and, therefore, there is a change of user regarding the use of the suit property.

(3.) The said suit was resisted by the defendants, by filing Written Statement, by contending that there is no sub-letting. It is also the case of the defendant that, both the defendants are brothers and that, therefore, there is no question of sub-letting between them. It is also the case of the defendants that both the brothers are doing business jointly. On these and other grounds, the suit was resisted by the defendants.