PUNDLIK SAMPAT THORAT Vs. SUBHANKHAN GULABKHAN

JUDGEMENT

(1.) BEFORE proceeding to deal with the merit of the controversy raised in the writ petition, it will be appropriate to dispose of two Civil Applications which are filed by the present petitioner to bring on record the fact of sale of the property, during pendency of the writ petition. Civil Application No. 3585 /2001 is filed by the petitioner bringing on record the sale deeds effected by the original owner. On both these Civil Applications this Court passed order that the application be considered at the time of hearing. On Civil Application No. 4897/98 this court issued notice to respondent and accordingly notices were served and respondents appeared through advocate. Though respondent No. 1 in Civil Application has not filed appearance but however, reply came to be filed and Shri V. T. Choudhary appearing for the petitioner appeared for respondent No. 1 in C. A. No. 4897/98. It is not disputed before me that the owner of the property has sold it to the applicants during pendency of this writ petition as the interest came to be devolved upon them. The purchasers prayed for impleading them as respondents in this petition. Considering these two Civil Applications in the light of the provisions of Order XXII Rule 10 of the C. P. C. , I allow both the Civil Applications and take on record the sale deeds and permit the applicants in c. A. No. 4897/98 to be impleaded as respondents in the writ petition. Accordingly, both Civil Applications stand allowed. Shri Katneshwarkar, learned advocate waives service on behalf of the added respondents. His appearance be noted in the writ petitions. Now to the facts of the writ petition.

(2.) BY this writ petition the petitioner/original defendant No. 2 is challenging the orders passed by the learned Civil Judge (J. D.) Jalgaon and confirmed on appeal by the learned District Judge, Jalgaon. This petition is filed under Article 227 of the Constitution of India challenging the judgment and decree passed by both the Courts below. Before considering the merit of the submissions advanced by the parties the facts which are not much in dispute are to be recorded.

(3.) ONE Subhankhan Gulabkhan and Rashidkhan undisputedly were the owners of a building situate at Polanpeth, Jalgaon, having C. T. S. No. 1852. Subhankhan i. e. original plaintiff instituted R. C. S. No. 205/79 against the petitioner/orig. defendants for possession of shop No. 2 situated towards northern side on the ground floor of the building (hereinafter referred to as the suit shop ). The parties will be referred in this judgment as landlord and as this petition is filed only by defendant No. 2, he will be referred to as tenant respectively. It is contended by the landlord in the plaint that the suit shop was let out to the (defendant No. 1) for running business of optician. Defendants Nos. 1 and 2 are the real brothers. It is the contention of the landlord that suit shop was leased out to the tenant for conducting of business of optician. Initially both the brothers were conducting that business. As one of brother defendant No. l secured accommodation in Navipeth, Jalgaon, he has shifted to that shop and running a business of optician in that shop. The defendant No. l without permission of the landlord inducted defendant No. 2 the suit shop to someone and closed the business of optician and started business of mutton hotel (restaurant ). The landlord came to know about this fact he requested the tenant not to do so that but however without permission of the landlord the tenant started using the suit shop as a mutton hotel by closing the business of optician. Although, the landlord claimed possession of the suit premises on personal bonafide requirement but in view of the judgment of the learned District Judge rejecting the claim of the landlord on personal and bonafide requirement and subletting, it is not necessary for me to consider those facts as the landlord has not challenged those findings. The tenant only had challenged the judgments, therefore, I will be confined to the issue and the findings in respect of the change of user.