BIRDHICHAND Vs. RAM PRASHAD

JUDGEMENT

(1.) RESPONDENT Ramprashad filed the present suit out of which this Civil Second Appeal arises for ejectment of the appellant from a shop situated in Naya Bazar, Ajmer City. The appellant's carrying on the business of Moonj and Ban etc. in the shop for the last 10 to 15 years is not in dispute. RESPONDENT's son-in-law Surajkaran is in occupation of an adjoining shop and is also carrying on the same business is also not in dispute. Sooraj Karan purchased the disputed shop as well as the shop in which he himself was carrying on business on 14th September, 1960. Thereafter, on 19th December, 1960, he sold the disputed shop to the respondent, who is a retired employee of the railways. After purchasing the shop the respondent served a notice of ejectment on the appellant on 2nd January, 1961, and having not received any reply from them, filed a suit for ejectment on 20th May, 1961. In the plaint, it is alleged that the shop is required by the plaintiff for his own use and occupation as he purchased it for starting his own business. The appellants contested the suit and their case was that the sale of the disputed shop in favour of the respondent was fictitious and sham. In fact it was Sooraj Karan who wanted to have the appellants ejected from the shop so that they may be uprooted from the rival business which they were carrying on. It was stated that the respondent had no bonafide and reasonable necessity for the shop. The learned Munsiff, Ajmer City, who tried the case, amongst others, framed the following issue on the question of the plaintiff's bonafide and reasonable necessity, "3. Does the plaintiff require the suit premises reasonably and bonafide for his own use and occupation?" In support of this issue the plaintiff examined himself and stated that he wanted the shop to be vacated for his own use. The exact words of his statement are

(2.) ESA nqdku vius [kqn ds csbus ds fy, djuk pkgrk gwwa** He admitted that he owned one shop which is situated below his house in Khazanchiwali Gali. He also admitted that he had rented out that shop to Bhaironlal before the institution of the suit. He also admitted that he had three sons, all of whom were in service of the railways. Chandmal (PW 2) stated that he did not know whether the plaintiff required the shop for his own use. Statements of both these witnesses were recorded by the trial court on 14th April, 1962. Sooraj Karan, the next witness, and who is the son-in-law of the plaintiff and who was examined on 25th July, 1962 was also present in the court on 14th April, 1962, as would appear from the order sheet of that date, but the learned counsel for the plaintiff sought adjournment. On 25th July, 1962, Sooraj Karan and one more witness Rampal were examined. Sooraj Karan stated that the plaintiff required the shop for starting business of Moonj and Ban, Rampal stated that the plaintiff wanted to sit on the shop and do business of any kind. The defendants examined themselves and produced as many as six witnesses to establish that the shop was not required by the plaintiff for his own use and it was really Sooraj Karan who for the purpose of eliminating the defendants from the business wanted to get the shop vacated. Learned Munsiff, after a consideration of the evidence on record came to the finding that the bonafides of the plaintiff were very doubtful looking to all the circumstances of the case and in his view there was great probability that it was Sooraj Karan who was behind the litigation. In his view the plaintiff had failed to discharge the burden of proving Issue No. 3. The learned Munsiff having regard to the statement of the plaintiff himself, which has been quoted above, was of the view that the plaintiff was very lukewarm in putting forth the grounds of his requirement. He also accepted the argument of the appellants that the shop near the plaintiff's house was quite suitable if he at all wanted to carry on business especially when the plaintiff has been so indifferent as to state the kind of business he wanted to carry on. The learned Munsiff also remarked that Sooraj Karan was purposely not examined on 14-4-62 because certain gaps had to be filled in. In his view the plaintiff was not a very trustworthy witness because he had denied the receipt of money orders which he had refused to accept and which were proved by the evidence of postmen namely D. W. 2/4 and D. W. 2/5. He, therefore, dismissed the plaintiff's suit.