RATANLAL Vs. MUKUT BIHARI

JUDGEMENT

(1.) THIS defendant's second appeal is directed against the judgment and decree passed by the learned District Judge dated 1.10.1989 whereby he has affirmed the judgment and decree of Munsiff, Bhilwara dated 5.8.1987 in civil criminal suit No. 289/74.

(2.) BRIEF facts are that Banshilal filed a suit for ejectment of the shop on the ground of reasonable and bonafide necessity, material alterations and arrears of rent against Ratanlal on 3.9.1974. It was alleged that the suit shop was taken on rent at the rate of Rs. 32/- on 1.7.1972 and rent was not paid from 30.6.1973. It was also alleged that the defendant has made material alteration as the partition wall between two shops was removed by the defendant without any previous permission and the shop is needed for Ladulal who had left his studies for the last two years and if shops are not vacated, he will suffer more hardship and loss in comparison to the defendant and there was no shop in the area to sit and do work of tailoring, as the plaintiff himself in sitting in the stair case of the shop which is not sufficient and it was also alleged that partial decree will not serve the purpose and both the shops are required. A notice was served but to no avail. Hence, a suit was filed. The defendant contested the suit and field written statement and submitted that the shops were not taken on rent from the plaintiff but it was taken from Ghisaram as the shop was under mortgage and he had deliberately not taken the rent and the defendants were ready to pay rent. The existence of bonafide personal necessity as well as ground of material alteration was also denied. The suit was amended and ground of partial partition was added. A rejoinder was also filed. The plaintiff examined himself as PW1, PW Ladulal, PW3 Sohanlal, PW4 Mohammed Shah and PW5 Nandlal and produced Ex.-1 notice. The defendant has examined himself as DW1, DW2 Gaurishanker and DW3 Madanlal and produced Ex. A-1 to Ex. A-6. Ladulal and Jeewatram were also examined in rebuttal. On the pleadings of the parties, the learned trial Court framed as many as 11 issues. After considering the relevant (?) the learned trial Court decreed the suit on 14.8.1982. The defendant preferred an appeal and the same was also dismissed on 17.10.1982. Hence, this second appeal. This appeal is pending since 24.10.1989 in admission and the execution of the decree was stayed by this Court so far as it concerned with ejectment and the order was extended from time to time. The case has come up before me. Both the parties submit that the case may be finally heard and as agreed by the parties the same is finally heard.

(3.) MR . H.P. Parekh, learned counsel for the appellant has submitted that the Courts below have erred in coming to the conclusion regarding material alteration without there being any pleading and has placed reliance on Kusum Chand and another v. Kanhayalal and another, AIR 1974 Raj. 73; Bhagat Singh and others v. Jaswant Singh, AIR 1966 SC 1831 and Siddikm Mohamed Shah v. Mr. Saran, AIR 1930 PC 57.