DINESH MALVIYA Vs. SHAMIM MIYAN

JUDGEMENT

(1.) THIS is plaintiffs appeal against the appellate judgment and decree passed by Second Additional District Judge, Hoshangabad in Civil Appeal No. 132-A/ 1995 reversing the decree of eviction passed by Second Civil Judge Class-I, hoshangabad, in CS. No. 33-A/92.

(2.) BRIEF facts giving rise to this second appeal are as follows:-Plaintiff/appellant filed a suit for eviction, arrears of rent and mesne profits against the defendant/respondent in respect of the Suit Shop No. 8 situated at Ward No. 13 at Tehsil Babai, District Hoshangabad. According to plaintiff, defendant was the tenant of the plaintiff in respect of the suit shop on monthly rent of Rs. 350/ -. His tenancy commenced from the first day of English calendar month and ended on the last day. The tenancy was for non-residential purpose. Defendant fell in arrears of rent from 1-1-89. Plaintiff required the suit shop for starting the business by his wife. The suit shop was also in dilapidated condition and was unfit for human habitation. It was required for carrying out reconstruction. Therefore, plaintiff served a registered notice dated 21-9-90 on the defendant through his Counsel and determined his tenancy w. e. f. 31-10-90 and also called upon him to pay the arrears of rent. Defendant, however, failed to pay the arrears of rent as well as to vacate the suit shop despite service of notice. Plaintiff, was therefore, constrained to file a suit before the Trial Court.

(3.) DEFENDANT/respondent contested the suit. In the written statement filed before the Trial Court defendant contended that suit shop was let out to him by the plaintiffs father Gulab on a monthly rent of Rs. 75/-, which was subsequently raised to Rs. 100/- per month. After the death of Gulab, plaintiffs brother used to recover the rent of Rs. 100/- per month from him and there was no relationship of landlord and tenant between the plaintiff and defendant. Plaintiff did not require the suit shop either for starting the business by his wife or for carrying out reconstruction. Defendant was not in arrears of rent. His tenancy was also not validly determined in terms of Section 106 of Transfer of property Act. Plaintiff was, therefore, not entitled to eviction. The suit filed by the plaintiff without joining all the LR's of Gulab was not maintainable and liable to be dismissed.