GYANCHAND DARSHANLAL Vs. BALKISHAN

JUDGEMENT

(1.) THIS is an appeal against the Judgment and decree passed by the Third Additional District Judge, Gwalior in Civil Appeal no. 76-A of 1977, reversing the judgment and decree dated 1-4-1977, passed by the Third Civil Judge, Class II, Gwalior in Civil Suit No. 39-A of 1973.

(2.) THE suit of the plaintiffs in the trial Court was on the following allegations. Plaintiffs Gyanchand, Surajmal and Radheshyam are real brothers and they constitute a joint Hindu Family. Gyanchand is the Karta of the family and the House No. 33 /96, situate at Sadar Bazar, Morar is a joint Hindu Family property. The defendants also constitute a joint Hindu family and defendant No. 1 Balkishan is the Manager and Karta of the family and he does the business in the disputed shop, which belongs to the plaintiffs. Defendants are Balkishan, Shrilal, Ramesh who are sons of Ramcharan and santobai is the widow of Ramcharan. The plaint further says that deceased ramcharan took on rent the disputed shop at Rs. 25 and a rent-note was executed on 23-6-1966 in favour of the plaintiffs Nos. 1 and 2 only as plaintiff no. 3 was minor at that time. The disputed shop is marked by red ink in the map which is filed along with the plaint. Ramcharan is now no more and defendants Nos. 1 to 4 are the legal representatives. The tenancy is a monthly tenancy and it starts on the first of every month. Defendants are paying the rent and are in possession of the shop as tenants.

(3.) AT present the plaintiffs are carrying on their business in the name of Sojiram Vidhichand and they are dealing in gold and silver ornaments. This business is done by plaintiff No. 1 in one of the shops which is owned by the joint Hindu Family. Plaintiff No. 2 is doing business in firm Ramjidas surajmal, which is a registered firm. The business carried on by this firm is of selling and buying utensils. Plaintiff No. 3 is without any business and, therefore, the plaintiffs genuinely need the disputed shop for carrying on the business of cloth which will be run by plaintiff No. 3. For the said purpose they have no reasonably suitable alternative accommodation in their possession in the city. The plaintiffs have two shops in their possession, but they are in a lane and adjacent to those shops, there are shops of sweet-meat makers and as such, those shops are not suitable for carrying on the business of cloth. Even otherwise, in this portion of the house, the material for constructing the house is stored and as such, plaintiff No. 3 is in need of the disputed shop for carrying on his business of cloth. The plaintiffs have funds with them also. Defendants are not paying the rent regularly and they are in arrears of rent from 1-11-1970. A notice of demand was sent to them on 17-11-1972, but in spite of that notice, the arrears of rent have not been paid by the defendants to the plaintiffs. Therefore, they are defaulters regarding the payment of rent and on the basis of default, the plaintiffs are entitled to get possession of the disputed shop. A notice terminating the tenancy of the defendants was served on them on 24-11-1972 and by the said notice, the tenancy was terminated from 31-12-1972. In the said notice, an option was given also that if the defendants feel that their tenancy comes to an end on different date than 31-12-1972, then they may treat their tenancy terminated on the said date and should vacate the suit premises. Then the plaint allegations say regarding cause of action and payment of court-fees and the relief. The suit was filed on 6-2-1973.