LAWS(MPH)-2011-11-10

KANHAIYA REDYMADE STORES Vs. RAMESHCHAND DAGDULAL SHAH

Decided On November 18, 2011
KANHAIYA READYMADE STORES Appellant
V/S
RAMESHCHAND Respondents

JUDGEMENT

(1.) The unsuccessful tenants (defendants) having lost from two Courts below have filed this second appeal assailing the judgment and decree of eviction passed against them by learned two Courts below. Looking to the substantial questions of law which are framed, the facts necessary for disposal of this second appeal lie in a narrow compass. Suffice it to say that the plaintiff/respondent Rameshchand filed a suit for eviction in respect to a shop, the description whereof has been mentioned in the plaint and which is disputed in the suit on the ground envisaged under Section 12 (1) (f) of the M.P. Accommodation Control Act, 1961 (in short "Act"). The suit has been filed arraying "M/s, Kanhaiya Ready-made Stores" a Partnership Firm as first defendant while partners of said firm namely Bhojraj, Kanhaiyalal and Chhata Ram have been arrayed as defendant Nos. 2 to 4 respectively. The defendants obtained suit shop from the father of the plaintiff and thereafter his second shop was also obtained by them on tenancy basis. There was a wall in between the two shops which defendants removed by dismantling it. The defendants were carrying on business in the name and styled "Asha Cut-piece" in the suit shop and now they are carrying on business in the name and style "Kanhaiya Ready-made Stores".

(2.) The plaintiff's father Dagdulal had already died and before his death, the said Dagdulal during his life time executed a Will in which the entire building consisting of suit shop and some other properties mentioned in it have been bequeathed to plaintiff, his brother Suresh and mother Maganbai. Later on an oral partition took place among Maganbai, plaintiff and his brother Suresh alias Surendra and in the partition, the movable property fell in the share of mother of plaintiff, while the suit shop fell in the share of plaintiff. The shop situated on the southern portion fell in the share of plaintiff's brother Suresh. A memorandum of this oral partition was also reduced in writing. Thus, according to plaintiff, in this manner he has become the owner of the suit shop which is on the northern side and defendants are tenants @ Rs 225/- per month.

(3.) Further, it has been pleaded by the plaintiff that defendants have not paid the rent w.e.f. 1-4-1988; the suit shop is bona fide required by the plaintiff lo start the business of Electrical Binding Works and for this purpose he is not having any suitable vacant non-residential accommodation of his own in the township of Burhanpur. The plaintiff before filing the suit also sent a notice to evict the suit shop and to pay arrears of rent but defendants have neither paid the rent nor vacated the suit shop and, therefore, present suit has been filed.