PRASANNA KR KHEMANI Vs. BISWANATH CHERENIA

JUDGEMENT

(1.) The plaintiff, who has been unsuccessful in obtaining a decree of eviction under the provisions of the Assam Urban Areas Rent Control Act, 1972, has instituted the present revision proceeding challenging the appellate judgment and decree dated 17.1.2000 by which the decree of dismissal of the suit has been affirmed.

(2.) Title Suit No. 66 of 1981 was filed by one Prasanna Kumar Khemani as the Karta of Inderchand Khemani, a Hindu undivided Mitakshara Family, for eviction of the defendant, one M/S Thaniram Mohanlal, another Hindu Undivided Mitakshara Family, represented by its Karta Biswanath Chirania. The suit in question was filed on the ground that the defendant is a defaulter in the payment of monthly rent of the suit premises and further that the suit premises was also bona fide required by the plaintiff for its own use and occupation. The plaint case is that the suit premises originally belonged to a Hindu undivided Mitakshara family doing business in the name and style of M/s Meghraj Hariram. One Meghraj Khemani was the Karta of the aforesaid Hindu undivided Mitakshara family and he was enjoying the suit property with his two sons, Hariram Khemani and Bojranglal Khemani. According to the plaintiff, after the death of Meghraj Khemani, Hariram Khemani became the Karta of the said Hindu undivided Mitakshara family whereas Bojranglal Khemani started his own business under the name and style of another Hindu undivided Mitakshara family known as M/s Bojranglal Chand Prasad. The further case of the plaintiff, as stated in the plaint, is that on the death of Hariram Khemani, his son Inderchand Khemani started his own business in the name and style of a Hindu undivided Mitakshara family known as Inderchand Khemani and both Inderchand and Bojranglal who were jointly owning and possessing the suit property, mutually agreed to partition their shares sometime in the year 195 7 as a result of which the suit property fell to the share of the Hindu undivided Mitakshara family represented by Inderchand Khemani. It may be noticed at this stage that notwithstanding the above case pleaded with regard to the mutual agreement of separation between Inderchand Khemani and Bojranglal Khemani, in the course of the evidence led in the suit the plaintiff had asserted a case of such separation between Hariram Khemani, i.e. the father of Inderchand Khemani and Bojranglal Khemani. Be that as it may, it is the further case of the plaintiff that upon mutual separation, as noted above, the defendant was informed of the same and he had attorney to the tenancy under the plaintiff. According to the plaintiff, the defendant had defaulted in the payment of monthly rent after March 1981 and that the suit premises was also required by the plaintiff for its own use and occupation. It is in the above circumstances that the Title Suit No. 66 of 1981 was filed claiming the reliefs earlier noted.

(3.) The defendant contested the suit by filing a written statement wherein it was contended that the tenancy in question was created sometime in the year 1953 between M/s Meghraj Hariram represented by Hariram Khemani and one M/s Thaniram Mohanlal, another Hindu undivided Mitakshara family of which the father of the defendant was the Karta. According to the defendant, the landlord M/s Meghraj Hariram was represented by its Karta, Hariram Khemani at the time when the tenancy was created. The defendant, in the written statement filed, had further contended that the landlord M/s Meghraj Hariram was not formally dissolved and the suit property continued to remain registered in its name. The coparceners of the aforesaid Meghraj Hariram not being impleaded as co plaintiff , the defendant took the stand that the suit filed by the plaintiff was not maintainable in the absence of the aforesaid coparceners. In addition, the defendant, in the written statement filed, took the plea that his father Thaniram Chirania, who represented M/S Thaniram Mohanlal as its Karta at the time when the tenancy was created, died in the year 1957 leaving besides the defendant, three other sons, who not being impleaded in tie suit, the plaintiff's suit was again bad for defect of parties. That apart, the defendant had contended that it is his eldest brother Nandlal Chirania who was/is the Karta of M/s Thaniram Mohanlal and, therefore, the plaintiff's suit was bad on the aforesaid account also. In so far as the alleged default in the matter of payment of monthly rent is concerned, the case of the defendant was that by arrangement between the parties there was no fixed rate for payment of rent and in the past rent for several months together used to be collected by any of the coparcener of the plaintiff Hindu undivided Mitakshara family. In some instances, rent was collected for as many as 18 months together. The defendant, therefore, contested the claim of the plaintiff as regards default by contending that there being no due date of payment of rent the defendant cannot be held to be a defaulter under the provisions of the Act.