PANCHAL MANILAL CHHAGANLAL Vs. MISTRY MULSHANKER CHHOTALAL

JUDGEMENT

(1.) This Revision Application by the original defendants is directed against the judgment and decree for possession passed by both the Courts below.

(2.) The trial Court held that the plaintiff alone is the owner and landlord of the suit property having proved the partition in the year 1970 and also held that the suit premises were let to the defendants only for the purpose of residence and defendant No. 1 had changed the user. The trial Court also held that the plaintiff failed to prove that defendant No. 1 had sub-let the suit premises to defendant No. 2. The trial Court also held that the plaintiff proved that defendant No. 1 had discontinued the use of the suit premises for the purpose for which the premises were let. The trial Court also held that the plaintiff required the suit premises reasonably for personal use and occupation and greater hardship would be caused to the plaintiff. While holding that the premises were let only for residence and the user was changed from residential to business the decree for possession was not passed on that ground as the trial Court held that by conduct the plaintiff had waived the breach and given implied consent to the change of the user of the suit premises because the objection was taken very late for the first time in the year 1973 even though the change of user was since many years and certainly prior to 1955. The trial Court therefore decreed the suit only on the question of reasonable and bona fide personal requirement.

(3.) The lower appellate Court has confirmed the decree for possession on the ground of reasonable and bona fide personal requirement. The lower appellate Court has confirmed the findings and conclusions of the trial Court on the question of change of user and sub-letting but refused decree for possession on that ground because of waiver as done by the trial Court.