THAKUR DAS Vs. NATTHUMAL

JUDGEMENT

(1.) The Respondent (Plaintiff) filed a suit against the Appellant (Defendant) on the ground that he is a tenant in a shop situated on the ground floor of his property having Nos. 4/509 (old) and 1/45 (new) situated in Pali Bazar, Beawar known as Dream Land since 01.01.1966. A rent deed was executed between the father of the Plaintiff and the Defendant on 30.12.1965 which was registered on 09.03.1968. Upon the death of his father on 04.12.1976, by virtue of a Will dated 16.09.1974, he became the owner of the property. The Defendant was duly informed about it and he paid rent to the Plaintiff thereafter. The Defendant paid rent upto September, 1982 vide receipt dated 05.10.1982 and thereafter the rent has neither been tendered nor given. The Defendant has sub-let and parted with possession of the shop to Heman Das. The shop is a bonafide and reasonable need of the Plaintiff who is doing business in a shop in the village, Ateetmund. The Plaintiff has four sons. His second son is employed in Dubai and he also wants to settle in Beawar to do business in cloth. The third son of the Plaintiff has left studying and is unemployed. He also intends to start a cloth business in the shop. The Plaintiff, along with his two sons, who are members of the Joint Hindu Family, will start a cloth business in the shop and if the shop is not vacated, greater hardship will be caused to them. The Plaintiff is of an advanced age and he does not keep good health. The business in the village has gone down considerably due to famine. Hence, the Plaintiff also wants to shift to Beawar to do cloth business in the shop along with his two sons. The Defendant is not sitting in the shop as he has another shop in front of Khetawat Building in the same market and is running his cloth business in it. He will not face any hardship if he is made to vacate the shop. He can also get another shop anywhere easily. The Plaintiff prayed that decree for ejectment and Rs. 2880/- as arrears of rent may be passed against the Defendant. The Defendant admitted the tenancy and submitted that the shop was given on monthly rent of Rs. 55/- per month on 01.01.1966 which was increased to Rs. 65/-, 70/- and 80/- per month respectively. When the Plaintiff did not accept the rent, it was sent by Money Order but the same was also refused. Hence, he had to deposit the rent in the Court. Rent upto March, 1989 has been deposited in the Court and he has not committed default. He has not sub-let or parted with possession of the shop to Heman Das who is his younger brother. The Plaintiff and his family do not need the shop as the Plaintiff has a food business in the village. One of his sons is an Advocate and the other son has a business in Dubai. The third son of the Plaintiff is also doing business independently. The sons of the Plaintiff are not dependent on him. The Defendant is doing his business in the shop for the past 25 years. He, along with his younger brother and father, are partners and conduct the business in both the shops, i.e., suit shop and the; other shop. They will not be able to manage their business only in the other shop. The Defendant is not in a position to purchase a shop. He will face great hardship if he is made to vacate the shop. He has no other accommodation for doing business while the Plaintiff has other shops also. The Plaintiff wanted to increase the rent upto Rs. 300/- and on refusal has filed the suit malafidely. The standard rent of the shop cannot be more than Rs. 55/- per month and the suit is liable to be dismissed. The Plaintiff submitted a rejoinder denying that the Defendant, his younger brother, Heman Das, and his father, Hasomal, are partners and doing business in the shop. The shop is a bonafide and reasonable necessity of the Plaintiff and his family. He and his sons will do business in the suit shop. He has experience of the business and money for investing in it. His son often comes to Beawar from Dubai as his family is living with the Plaintiff. The Plaintiff has a Joint Hindu Family and the standard rent of the shop should be increased to Rs. 150/-.

(2.) On the pleadings of the parties, the Trial Court framed six issues. Mohan Lal PW-1, Natthu Mal PW-2, Manohar Lal PW-3, Uttam Chand PW-4 and Shanker Das PW-5 were examined on behalf of the Plaintiff, while Thakur Das DW-1 and Ram Chandra DW-2 were examined on behalf of the Defendant. After hearing the parties, the Trial Court decided issue Nos. 1, 3, 4 and 5 regarding default, arrears of rent, standard rent and Plaintiff's desire of increasing rent which were decided in favour of the Plaintiff. Issue No. 2 regarding reasonable and bonafide need was decided against the Plaintiff and the suit of the Plaintiff was dismissed regarding ejectment by giving benefit of first default to the Defendant on 17.05.1999. The Plaintiff preferred an appeal against the aforesaid judgment and decree. After hearing the parties, the Appellate Court decided issue No. 2 in favour of the Plaintiff and allowed the appeal by setting aside the finding of the Trial Court on issue No. 2 and suit for eviction was decreed on 02.03.2009. The Defendant has preferred this second appeal against the said judgment and decree under Section 100 Code of Civil Procedure.

(3.) I have heard the Learned Counsel for the parties at length and carefully gone through the record of both the courts below.