RAMESH CHAND Vs. BHAGWAN DAS & ANR

JUDGEMENT

(1.) This second appeal by the defendant-appellant (hereinafter 'the defendant') under Section 100 CPC has been filed aggrieved of the judgment and decree dated 30.04.2008, passed by the Additional District Judge No.2, Bayana setting aside the judgment and decreed dated 26.10.1999 passed by the Civil Judge (Sr.D.), Bayana, whereby the plaintiffs-respondents' (hereinafter 'the plaintiffs') suit for eviction had been dismissed. Consequently, the plaintiffs' suit for eviction was decreed.

(2.) The facts of the case are that the plaintiffs filed a suit on 19.05.1988 for arrears of rent and eviction against the defendant stating that the disputed shop situate in Sabji Mandi, Bhusawar Town as detailed in para 1 of the plaint was let out to the defendant on 15.04.1983 @ Rs.160/- p.m. It was stated that the defendant had paid rent till 14.04.1985 and thereafter had neither tendered nor paid the rent for more than six months and therefore had committed default. The plaintiffs claimed arrears of rent albeit confining the claim to 36 months for the period 15.04.1985 to 14.04.1988 aggregating to Rs.5,760/- in view of the limitation of three years for recovery of due rent. The further case of the plaintiffs was that the tenanted shop was required by the plaintiff No.2, Yogesh Kumar, who was married with three children and yet unemployed and was desirous of starting his own business as a clothes merchant from the tenanted shop. It was stated that the plaintiff No.2, Yogesh Kumar, had requisite experience in the business obtained through one Vishan Lal Suresh Chand also a clothes merchant at Bayana. Further averment was that the defendant would not suffer any hardship in the event of his eviction as he had established shoe making factory operating from his own house and also had a shop of his own. Ground of sub-letting for eviction of the defendant was also taken alleging that the disputed shop / premises had been sub-let to one Om Prakash S/o Chirmoli.

(3.) On service of notice in the suit, the defendant filed a written statement of denial. It was stated that the defendant had taken a shop on rent from Shiv Lal, who was the brother of Murari Lal (father of the plaintiffs) in the year 1981 on an oral tenancy. It was stated that the defendant had never been informed with regard to the devolution of the property of Shiv Lal to Murari Lal or to his sons. No rent had been paid, no attornment had ensued. It was stated that aside of the tenanted shop on rent with the defendant, other shops of Shiv Lal had also apparently devolved on his brother Murari Lal. From, one of the shops so devolved, Murari Lal was stated to be doing business in the sale and purchase of vegetables as a commission agent and in another shop Yogesh Kumar, plaintiff No.2, was stated to be doing business in house-hold utensils. It was stated that two other shops were lying vacant. And in this view of the matter, the plaintiffs had no bona fide and reasonable necessity as stated in the plaint. It was stated that the plaintiffs did not have valid title of the suit property. It was denied that the tenanted shop had been sub-let to Om Prakash as he was only helping out the defendant being the son of his brother in view of the defendant having suffered an accident and lost a leg therein owing to which he had become handicapped and needed assistance. It was submitted that the actual physical control and exclusive possession of the tenanted shop had never at any point of time been divested in favour of Om Prakash by the defendant and there was thus no question of subletting.