GOPAL DAS RATHI Vs. SUNDARLAL MALL

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 4th July, 2002 passed by the District Judge, Purulia in Title appeal No. 96 of 2001, thereby sending back the title suit No. 23 of 1993 of the Court of Civil Judge (Junior division), Purulia on remand for decision afresh on all the issues.

(2.) THE plaintiffs case briefly stated, in the Court below was as follows : the plaintiff, Gopal Das Rathi as the owner of the suit premises instituted the suit for eviction of the defendants/tenants at a rental of Rs. 150/-per month payable according to Sambat Calendar month on the ground of default and reasonable requirement for plaintiffs own use for starting a business.

(3.) IT was also the case of the plaintiff that the suit property in holding no. J-570, Purulia Municipality originally belonged to joint Hindu family consisting of Hiralal Rathi, Seonath Rathi, who were governed by the mitakshara School of Hindu Law. The property was acquired in the name of gourishankar and Hanumandas Rathi by virtue of a sale deed dated 8th august, 1951. Thereafter on amicable partition amongst the members of the joint family dated 20th January, 1978, the suit property was allotted to the share of the plaintiff and his brother Laxmi Narayan Rathi, who were the grand sons of Seonath Rathi. The defendants were occupying one shop room which is standing in the Northern Side of the holding described in the schedule of the plaint at a rental of Rs. 150/- per month payable according to Sambat Calendar month. The plaintiffs brother having stopped giving any assistance to the family, the plaintiff intended to start a new business of wholesale dealership in the suit premises occupied by the defendant as tenant. The plaintiff had no other premises to start such business and accordingly he terminated the tenancy by serving one notice of ejectment on the expiry of the month of Bhadra 8. The defendants received the notice on 28th July, 1992, but as the notice was defective another notice dated 3rd November, 1992 was served upon the defendants terminating their tenancy with the expiry of the month of Poush and such notice was received by the defendants who also gave a reply to the same through their lawyer. It has been further stated by the plaintiff that previously there was a title suit for eviction against the defendants on the ground of default, but the defendants got protection against the grounds of default. In the present suit they cannot again get such protection.