DAYA RAM Vs. ISHRAT HUSSAIN AND OTHERS

JUDGEMENT

(1.) This writ petition has been filed by the landlord. The suit for eviction filed by the landlord-petitioner against respondent Nos. 1 and 2 alleging respondent No. 1 to be tenant and respondent No. 2 subtenant numbered as S.C.C. Suit No. 91 of 1992 was dismissed by Civil Judge/Judge Small Causes Court, Kairana District, Muzaffarnagar on 10th March, 1995. The revision filed against said judgment and decree numbered as SCC Revision No. 46 of 1995 has been dismissed by Xth Additional District Judge, Muzaffarnagar through judgment and order dated 29 Nov., 1997.

(2.) This writ petition is directed against the aforesaid judgment and orders. The main ground for ejectment taken by the landlord-petitioner was that of sub-tenancy through admission of a partner who was not his family member by respondent No. 1. Both respondent Nos. 1 and 2 are real brothers. However, brother is not included in the definition of 'family' given in U.P. Act No. 13 of 1972. The case of the landlord was that shop in dispute was constructed in Feb., 1976 and immediately after construction it was given on rent to defendant respondent No. 2 who vacated it on 5th June, 1978. Thereafter, on 5th Sept., 1979, it was given on rent to defendant-respondent No. 1 and that in between the two tenancies shop remained vacant, that on 20th March, 1980 a registered lease deed was executed in between landlord-petitioner and tenant-defendant respondent No. 1. It was further pleaded by the petitioner that in the year 1992, he came to know that defendant-respondent No. 1 had made defendant-respondent No. 2 a partner in his business.

(3.) Defendant-respondents pleaded that since 1976 both the brothers were carrying on the business of selling medicines from the shop in dispute by the trade named of Hind Medical Agency and that there was no gap in the tenancy of both the brothers, that in the year 1980 tenancy was changed in the name of defendant-respondent No.1 and that landlord was since beginning aware of this fact, that both brothers were jointly carrying on the business from the shop in dispute. The Courts below, placing reliance upon several documents of tax department and other documents, came to the conclusion that since before 1980 both the brothers were carrying on the business from the shop in dispute jointly and they had constituted a firm.