SURENDRA MAL Vs. CHAGAN LAL

JUDGEMENT

(1.) This second appeal under Section 100 CPC is directed against judgment and decree dated 05.04.2013 passed by Additional District Judge No.2, Jodhpur Metropolitan, whereby, the appellate court while reversing the judgment and decree dated 20.11.2009 passed by Additional Civil Judge (Junior Division) No.3, Jodhpur decreed the suit filed by the respondent-plaintiff for eviction against the appellants.

(2.) The facts in brief may be noticed thus: the respondentplaintiff filed a suit for eviction against the defendantsappellants, inter alia, with the averments that a property situated at Sardarpura, Jodhpur is possessed and owned by him, in which, several shops are situated, out of which, shop No. 2 was let out to one Sohan Chand Bhandari on 17.10.1972 by Ganesh Ram, predecessor in title through rent agreement; the shop was let out to Sohan Chand for his own business of cloth; on 02.08.1998 the plaintiff came to know that Sohan Chand had expired long back and none of his family members were carrying on the business with him during his life time and, therefore, the tenancy rights have not devolved upon any of his family members; the father of the plaintiff received the rent of the shop from late Sohan Chand as well as from defendants; defendants were not the family members of late Sohan Chand and were not carrying on business with him during his life time in the shop in dispute, therefore, they did not come within the definition of tenant under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act') and, therefore, the relationship of landlord and tenant does not exist and, therefore, the possession of the defendants on the shop was illegal and they were not entitled to protection under the Act and were liable to be evicted.

(3.) The appellants-defendants filed their written statement and denied the averments made in the plaint and questioned the grounds of eviction also; it was claimed that Sohan Chand had expired on 20.03.1983 and during his life time some of his family members as well as defendants were carrying on business with him as his family members and, therefore, the tenancy rights have devolved upon the defendants as well as legal heirs of deceased tenant; not only father of the plaintiff but his mother also received the rent from the defendants through rent receipts with full knowledge that Sohan Chand Ji had expired and defendants were carrying on the business of cloth in the shop in dispute; father and mother of the plaintiff recovered the rent of the shop in dispute since 20.03.1983 i.e. after the death of Sohan Chand till March, 1994 for 11 years and, therefore, the contention of the plaintiff that defendants are not the tenants in the shop was incorrect; Sohan Chand Ji had constituted a partnership firm on 29.11.1982 with some of his family members and ultimately defendants were introduced as partners w.e.f. 01.04.1995; son, daughter-in-law and maternal-grand-son of deceased Sohan Chand were carrying on business during his life time as family members in the shop in dispute, therefore, on the death of Sohan Chand, the tenancy rights have devolved upon the said family members; no ground for eviction as envisaged under Section 13 of the Act has been set out in the plaint and the suit was, therefore, not maintainable.