KASHINATH R ZAVAR Vs. JIVANRAM BHAGWANDAS

JUDGEMENT

(1.) This is landlords petition challenging the dismissal of his suit for eviction against the respondent filed by him on the ground that the bona fide required the suit premises for occupation.

(2.) The suit premises consist of municipal house No. 147 which are admittedly in the possession of the defendant and the defendant, which as it now appears is a partnership firm is running a shop in these premises. The plaintiff came to Court with a case that he has two sons Rajmal and Sharad and these two sons had to be settled in life. He wanted to start a medicine shop to be run by Rajmal who, according to him, was already working as an employee of a pharmaceutical firm. The other son Sharad according to the petitioner, wanted to start a dispensary. Further according to the petitioner, Bhagwandas who was looking after the dispensary of the defendant firm had already taken possession of house No. 149 in Polan Peth which was originally in the occupation of his tenant. Therefore, according to the petitioner, the defendant would not be in any way prejudiced if a decree for eviction was passed. The defendant denied the case of a bona fide need put up by the petitioner plaintiff. The main plea of the defendant was that the petitioner had his own threestoried building in Balaji Peth where he originally used to run a shop and where he was now staying and he also owned three other plots in Jalgaon where the property in dispute is situated. It was the positive case of the defendant in the written statement that in front of the house of the plaintiff, there is a market place and shops and there were dispensaries and medicine shops also. Further it was stated that the plaintiff had initially started a shop, but he closed it down and got his son employed. It was specifically denied that Rajmal had any knowledge about business in medicine and, according to the defendant, the other son Sharad was taking his education and if at all the plaintiff wanted to start a shop, he could do it in his own premises. Therefore, according to the defendant, the need was neither genuine nor reasonable. Further it was pleaded that house No. 149 was the personal property of Bhagwandas and the business in the suit premises was a partnership business carried on by Manakchand, Nandlal and Bhagwandas, all sons of Jivanram and the two partners Manakchand and Bhagwan had nothing to do with house No. 149. Bhagwandas is admittedly a step-brother of Manakchand and Nandlal.

(3.) On these pleadings the parties went to trial and apart from the petitioner his son Sharad gave evidence and on behalf of the defendant Bhagwandas gave evidence before the trial Court the petitioner filed a notice dated 14th October, 1967 issued under the provisions of the Town Planning Act to the effect that while making a town plain, the plaintiff was to be given plot No. 96 in lieu of his present plot No. 116. Now, it is not in dispute that this notice was in fact not for allotment of any other plot, but, according to the plaintiff, half of his house No. 110 was intended to be taken over by the Town Planing Authority. It is, however, not in dispute that inspite of this notice issued as far back as on 14th October, 1967, the plaintiff even now continues to be in possession of the entire house No. 110. The trial Court while considering the issue whether the plaintiff required the suit premises reasonably and bona fide for starting a medical shop for this sons came to the conclusion that the plaintiff had established satisfactorily that he required the suit premises reasonably and bona fide for the use of his sons for their respective professions, that is, for the medicine shop to be started by Rajmal and for dispensary to be started by Sharad. The observations made by the trial Court show that his decision with regard to the need in respect of the rented premises was largely influenced by the fact that even the residential accommodation, that is, house No. 110 was going to be reduced to one-half as a result of the town planning scheme. The learned Judge of the trial Court negatived the argument that the proceedings were initiated out of an ulterior motive to oust the defendants. Further, the trial Court, considering the issue of hardship, took the view that if the accommodation is not made for the shop and the dispensary, the plaintiff will not be in a position to settle his sons into the respective business and profession. Further while considering the hardship of the defendant, the trial Court took the view that house No. 149, which Bhagwandas claimed to be his own, in which two step-brothers, according to him, had no interest, was the property of the joint family and that the shop Jivanram Bhagwandas was also the property of the joint Hindu family consisting of the three sons of Jivanram Harkaran. He reached this conclusion on the footing that Jivanram purchased this house in the name of Bhagwandas as the property of the joint family and that it was not the separate property given to Bhagwandas at the time of the separation of the family because no separation was proved. The trial Court also held that the shop Jivanram Bhagwandas belonged to the joint family because a reply to the notice served by the plaintiff was given by Bhagwandas showing himself as Vahivatdar of the shop. Jivanram Bhagwandas along with his father Jivanram Harkaran and that the contention that Bhagwandas had no interest in the shop was taken only after the death of Jivanram Harkaran in April 1964. The trial Court further took the view that if house No. 129 was the property of the joint family, its nature cannot be changed by Bhagwandas and his step-brothers becoming partners in the Kirana and grain business. The learned trial Judge further held that the partnership was actually formed the intention that it should be possible if and when a suit was instituted to contend that the municipal house No. 149 was the individual property of Bhagwandas and the shop Jivanram Bhagwandas was a partnership business in which Bhagwandas was only one of the partners. Thus having taken this view, it reached the conclusion that already accommodation was available to the defendant and, therefore, no hardship would result if a decree for eviction would be passed against him. The trial Court had also framed an issue as to whether running the business as a partnership concern would amount to not using the suit premises for which they were let out, but that issue was answered in the negative. Finally, the trial Court passed a decree for possession in respect of the suit premises.