CHANDRASEN GULABCHAND SHAH Vs. GANESH SHRAWANJI ICHE

JUDGEMENT

(1.) By this appeal, the appellant (who is now represented by his legal representatives) has challenged the judgment and order dated 26-09-2007 passed by the Court of District Judge, Akola (appellate Court) in Regular Civil Appeal No.254 of 2000, whereby the appeal filed by respondent no.1 was allowed and decree granted by the Court of Joint Civil Judge, Senior Division, Akola (trial Court) in suit for possession passed in favour of the appellant was set aside. The suit property in the present case is a shop situated in a building standing on Nazul Plot No.3/22, House No.303, Ward No.41 at Akola. The appellant, being the owner of the suit shop claimed that it was given on rent to one Pramod Mahure, while it is claimed by respondent no.1 that the suit shop was in fact given on rent to partnership firm M/s New Swatantra Optical of which respondent no.1 and said Pramod Mahure were partners and that the said partnership firm was tenant in the suit shop. While the trial Court has held that the appellant had indeed given the said suit shop on rent to Pramod Mahure, the appellate Court has disagreed and it has held that the suit shop was let out to the said partnership firm. It is on the basis of the difference in the findings rendered by the Courts below on the said issue that the trial Court had decreed the suit while the appellate Court has set aside the decree and dismissed the suit filed by the appellant.

(2.) It is the case of the appellant that an agreement dated 01-04-1991 (Exhibit53) was executed between him and said Pramod Mahure styled as an agreement for execution of lease deed in respect of the suit shop. According to the appellant, on the basis of the said agreement, the suit shop was let out to said Pramod Mahure for a fixed rent of Rs. 500/ per month, with the stipulation that the said tenant would pay taxes in respect of the suit shop. A deposit of Rs. 40,000/ was taken by the appellant and it was agreed that the suit shop was let out for a period of three years. In the said suit shop, business of opticals was started by M/s New Swatantra Optical, the partnership firm of which Pramod Mahure was a partner along with respondent no.1.

(3.) On 03-01-1993, the said Pramod Mahure died. The appellant received a notice dated 05081993 sent by respondent no.1, wherein it was claimed that the said partnership firm was a tenant of the suit shop and that upon the death of said Pramod Mahure the aforesaid firm had come to an end and that respondent no.1 had become a tenant of the suit shop. The appellant sent a reply dated 07-08-1993 to the said notice, denying all the allegations made by respondent no.1 in the notice. The appellant also returned the cheques towards rent sent by respondent no.1. Thereafter, another notice dated 16-03-1994 was issued by respondent no.1 through his Advocate, which was received by the appellant along with a cheque of Rs. 6000/. The appellant sent reply to the said notice and returned the said cheque also. Thereafter, the appellant called upon respondent no.1 to vacate the suit shop, stating that the said respondent was in unauthorized occupation of the same. The appellant also claimed damages from respondent no.1 for such unauthorized occupation. As the respondent no.1 failed to vacate the suit premises, the appellant filed Special Civil Suit No.173 of 1994 before the trial Court against respondent no.1, who was arrayed as defendant no.4 and respondent nos. 2 to 4, were arrayed as defendant nos. 1 to 3.