RISHABHA KUMAR JAIN Vs. INDRAWATI

JUDGEMENT

(1.) The appellant has filed the present appeal challenging the judgment and decree dated 15/12/1998 passed in Civil Appeal No.5-A/1998 by 2nd Additional District Judge, Balaghat thereby affirming the judgment and decree dated 18/7/1996 passed by Civil judge Class-I, Balaghat in Civil Suit No.76-A/1994.

(2.) Brief facts of the case are that the appellant has got the disputed house in partition and the defendant is the tenant in the said house in rent @ Rs.40/- per month. An agreement of the rent was executed on 28/7/1973 and the tenancy commences from 1st day of each month. The appellant has filed civil suit on the ground that the plaintiff is a doctor by profession and is having X-ray and ECG machines and at present he is carrying on his profession in the two rooms which belongs to the joint family property. The accommodation which is in possession of the plaintiff/appellant is not adequate to run the profession. The plaintiff, therefore, pleaded that he requires the suit accommodation for constructing a Nursing Home after demolishing the existing construction and for the said purpose he had prepared a map and he possesses sufficient funds also. He further alleged that the plaintiff is not having any alternate suitable accommodation at Balaghat district. The plaintiff, therefore, gave a notice regarding termination of tenancy to the defendant but the defendant failed to vacate the plaintiff's premises, therefore, the plaintiff had filed the present civil suit.

(3.) The defendant filed his written statement and denied that the defendant is the tenant of the plaintiff. The defendant pleaded that the defendant is the tenant of one Motilal who is father of the plaintiff and the property in dispute is the joint family property. He further pleaded that the father of the plaintiff had earlier filed a suit for eviction of the said room in the Court of 1st Civil Judge Class-II, Balaghat and the said civil suit was decreed and, therefore, the present suit is not maintainable according to Section 47 of the Code of Civil Procedure. He also pleaded that the plaintiff is having an alternate accommodation for running his profession and the said suit is filed only for the purpose of eviction of the defendant.