GANGA RAM Vs. CHOUDHARY JAI KUMAR JAIN

JUDGEMENT

(1.) THIS is a Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 28-8-1995 passed by the learned IXth Additional District Judge, Jabalpur in Civil Appeal No. 60-A/95 arising out of the judgment and decree dated 23-10-1992 passed by the learned Xlvth Civil Judge, Class-II, Jabalpur in Civil Suit No. 91-A/92.

(2.) THE facts as emerging from the judgments of the Courts below are these: The appellant/defendant is the tenant of a shop bearing house No. 419 East Niwarganj Ward, Jabalpur commonly known as Jawaharganj or Lordganj (which shall hereinafter be referred to as "suit Premises") which has been used for non- residential purposes. Choudhary Ratan Chand Jain, original plaintiff, filed civil suit for eviction of the appellant/defendant from the suit premises on the ground of bonafide need of his son Dhananjay Kumar Jain, the respondent/plaintiff No. 5. The appellant/defendant challenged the above ground for eviction on the fact that there was a family partition and the suit premises fell into the share of Choudhary Jai Kumar Jain, the original respondent/plaintiff No. 2 (since dead) and therefore as per provisions of law the suit premises could not be got vacated for the alleged requirement of Dhananjay Kumar Jain, the brother of Choudhary Jai Kumar Jain. The Trial Court found that the suit premises is bonafide required by Dhananjay Kumar Jain for starting his business and that there was no partition in the family and therefore the suit premises did not fall into the exclusive share of Choudhary Jai Kumar Jain. The learned Trial Court, thus, decreed the suit in plaintiffs/respondent's favour. Against such judgment and decree, the appellant/defendant preferred an appeal before the District Court. In the first Appellate Court, the appellant/defendant filed an application under Order 41 Rule 27, CPC alleging that he got a copy of the partition deed which may be permitted to be filed as an additional evidence before the first Appellate Court. The application was allowed and the appellant/defendant was permitted to file the document. The learned first Appellate Court, however, dismissed the appeal confirming the decree of eviction passed against the appellant/defendant by the impugned judgment and decree dated 28-8-1995 passed by IXth Additional District Judge, Jabalpur in Civil Appeal No. 60-A/95. Being aggrieved with the said judgment and decree dated 28-8-95, this Second Appeal has been filed by the appellant/defendant.

(3.) WHILE admitting this appeal under Section 100, CPC, the following substantial question of law was formulated by this Court:-