MOHD HASHIM Vs. ABDUL SATTAR

JUDGEMENT

(1.) This miscellaneous appeal is directed against the judgment and order dated 22.7.1995 passed by the District Judge, Sahebganj in Title (Eviction Appeal No. 5 of 1990 by which while setting aside the judgment and decree dated 22.8.1990 passed by 2nd Subordinate Judge, Sahebganj in Title Suit No. 21 of 1987, remanded the case of the learned Subordinate Judge for hearing and passing judgment afresh.

(2.) The plaintiffs-appellants' filed Title Suit No. 21 of 1987 in the Court of learned Subordinate Judge, Sahebganj against the defendants-respondents for decree of eviction on the ground of nonpayment of rent as also on the ground of bona fide personal necessity. According to plaintiffs-appellants the suit premises being one room known as "Goodluck Tailoring House" within Sahebganj Municipality bearing holding No. 101 was under the occupation of defendant respondent No. 1 who carry on business of tailoring shop. The suit premises originally belonged to father of the plaintiffs-appellants and after his death the entire building was partitioned amicably by virtue of family arrangement whereby the suit premises has fallen in the share of plaintiff No. 1. The plaintiffs' further case was that suit premises was given on rent to defendant No. 1 by the father of the plaintiffs at monthly rent of Rs. 90/-. The defendant No. 1 paid rent of the suit premises upto 31.12.1985 and thereafter defaulted to pay the rent of the same from 1.1.1986 and thereby made himself liable for eviction. The plaintiffs further alleged that the room under the occupation of plaintiff No. 1 was too small to accommodate family requirement of plaintiff No. 1. Plaintiff No. 1 having now been transferred to Sabour in the District of Sahebganj where he goes daily by train and returns in the evening. The plaintiff No. 1 thus stays in the building at Sahebganj with his family members and there are difficulties in accommodating the family members and other relations of the plaintiffs. The children of the plaintiffs are also facing difficulties in their education because of nonavailability of accommodation. The plaintiff No. 1, therefore, sought eviction on this ground also.

(3.) The defendants-respondents appeared in the suit and filed their written statement, wherein besides taking usual pleas of non-joinder of necessary party it was stated that there had been no partition of the suit premises by any family arrangement after the death of Niyamat Husain, father of the plaintiffs who died leaving behind his widow, five sons and two daughters. According to defendants the suit premises was still in jointness. The defendants further alleged that at the request of Niyamat Hussain the original landlord the defendant paid him a sum of Rs. 10,000/- as advance and shifted his tailoring house to the western shop on its vacation by the said Tanka Mian in the year 1974. The defendants claimed adjustment of the said amount and thereby after adjustment the defendants cannot be said to be a defaulter. The defendants further denied and disputed the allegation of bonafide personal necessity.