ATMA RAM KHEMKA Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) THIS first appeal has been preferred against the judgment dated 28.8.1993 and decree dated 9.9.1993 passed by Sri Ram Pravesh Sharma, Sub -Judge 1st, Aurangabad, in Eviction Suit No. 1 of 1989 whereby he has been pleased to hold that the suit of the plaintiffs -appellants is not maintainable and therefore, liable to be dismissed and accordingly, he dismissed the suit.

(2.) The brief facts of the case are as follows: The plaintiffs -appellants ' case is that the plaintiffs and proforma defendants nos. 5 to 7 were members of joint Hindu Mitakshara family and the proforma defendant no. 5, namely, Baij Nath Prasad Khemka was the Karta and the Manager of the joint family. Defendant No. 5 being Karta and Manager of the joint family acquired landed property in the town of Aurangabad and other places out of nucleus of the joint family property. In the year 1986, partition took place between the branches of Onkarmal Khemka on the one hand and Hari Ram Khemka on the other. In the said partition the house situated over Khata No. 50 Old Plot No. 334 comprising an area of 4 Kattha 2 -1/2 dhur was allotted to the plaintiffs alongwith other properties. After the said partition, name of the plaintiffs were mutated in the municipality with respect to the said house. Further case is that a portion of first floor of Holding No. 451 standing over plot no. 334 was given on lease to defendant no. 1 Punjab National Bank on a monthly rental of rupees one thousand per month. The tenancy was created when both the branches comprising Onkarmal Khemka and Hari Khemka were joint and the agreement of lease in connection with the said tenancy was executed between defendant no. 5 -Baij Nath Prasad Khemka and principal defendant no. 1 -Punjab National Bank. Subsequently, some more portion of the first floor of the building was given in tenancy on enhanced monthly rental of Rs. 1530/ - per month. The defendant no. 5, who was the Karta and Manager of the joint family used to collect the rent of the premises when the two family were joint but after the partition the plaintiffs sent lawyer 'snotice to defendant no. 1. and demanded payment of monthly rent of the premises from the defendant no. 1 but the defendant no. 1 simply sent a reply that the authorities of the bank were informed in this regard. In the meantime, proforma defendant no. 5 also informed the Manager of the Punjab National Bank, Aurangabad, that the rent of the suit premises be paid to defendant no. 5 and advised bank to get a fresh deed of lease executed. But the defendant no. 1 did not pay the rent of the suit premises to the plaintiffs and defaulted in payment of monthly rental of the suit premises and hence made themselves liable to be evicted from the suit premises on the ground of default. It is further said that the plaintiffs required the suit premises for their bona fide personal needs as some of the plaintiffs, who come from business community, are sitting idle and for starting business for them the plaintiffs are in urgent need of the suit premises.

(3.) IT appears that all the defendants appeared in the suit and two sets of written statements were filed; one set was filed from the side of the defendant nos. 1 to 4 and another set was filed from the side of defendant nos. 5 to 7. From the written statement filed by the defendant nos. 1 to 4, it appears that they have disputed the claim of the plaintiffs that the defendant no. 1 is tenant of the plaintiffs. They have categorically denied that there is any relationship of landlord and tenant between the plaintiffs and the defendants. At para 7 of the written statement, it has been stated that defendant nos. 1 to 4 have taken the suit premises on rent from defendant no. 5 -Baij Nath Khemka through agreement executed in between them which was renewed time to time, on the basis of which Kirayanama was also executed on stamp paper. According to their case defendant no. 5 is the owner of the building and not the plaintiffs and that the defendant nos. 1 to 4 were regularly paying the rent of the building to Baijnath Prasad Khemka and so, the plaintiffs are not entitled to get any decree in their favour for eviction of the defendant nos. 1 to 4.