MOHNI BAI GURDASMAL HIRWANI Vs. KUNDANLAL CHOTELAL JAIN

JUDGEMENT

(1.) THIS is defendant's second appeal under Section 100 Civil Procedure Code. The following substantial questions of law were formulated by order dated 13.5.1998 at the time of admission of this appeal :-

(2.) THERE is a concurrent finding of fact of the trial Court and the first Appellate Court that the suit accommodation had been let out for non- residential purpose and it is required bonafide by the plaintiff for carrying on his cloth business and he has no other reasonably suitable non-residential accommodation of his own in his occupation for this purpose of the city. The suit has been decreed under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961. The suit accommodation was let out by the plaintiff's father Chotelal to Gurdasmal, the husband of defendant Mohni Bai. The original lessor and lessee both have died. Chotelal has left behind two sons Kundanlal Jain and Devendra Jain. The first Appellate Court reversing the finding of the trial Court has held that there has been a partition between them on 30.11.1982 and the suit accommodation has been allotted to the share of Kundanlal Jain who is plaintiff in this case. There is another shop which has fallen to the share of Devendra Jain and he has let out the same to Prakash Kumar Pahuja during the pendency of this suit.

(3.) THERE is no inconsistency in the pleadings in paras 17-A and 18 of the plaint. There are only two shops in the house. According to the plaint allegations the suit shop has been allotted to the plaintiff in the partition and the other shop has gone to the share of the plaintiff's brother. The trial Court had held that the plaintiff can file the suit for eviction even if he is only a co-owner of the suit accommodation. The first Appellate Court has given the finding on the basis of evidence of plaintiff Kundanlal Jain (P.W. 1) and his brother Devendra Jain (P.W. 2) that there has been actual partition between the two brothers in which the suit shop has been allotted to the plaintiff. There is no document to establish the partition but there can be oral partition also. The view taken by the first Appellate Court is reasonable and plausible and it cannot be said to be perverse. There can be no interference with such finding in second appeal. The question of partition has assumed some significance because during pendency of the suit the other shop has been let out by the plaintiff's brother and it could be treated as 'alternative accommodation' available with the plaintiff to satisfy his own need if there had been no partition between the two brothers. The finding that there has been a partition is a pure finding of fact and the evidence is consistent with the pleadings. The finding on this point recorded by the first Appellate Court which is a final Court of fact must be accepted.