N.G.SHELAT - (1.)The plaintiff-respondent filed a Regular Civil Suit No. 20 of 1963 in the Court of the Civil Judge (J.D.) at Kalawad for recovering possession of the suit shop together with mesne profits and costs of the suit against the appellant-original defendant inter alia alleging that he had taken the suit shop under a rent-note dated 20th October 1960 on a monthly rent of Rs. 33.00 and that he had agreed to hand over possession thereof when he required the same for selling or mortgaging or at any time when he required for his own purposes by giving him one months notice. The plaintiff required the said shop for raising a loan of Rs. 10 0 by creating a mortgage with possession thereon and that for that purpose be served him a notice dated 8th January 1963 terminating his tenancy and demanding possession of the suit shop from Maha Vad 30 of S.Y. 2019. Since the defendant failed to comply therewith he filed the suit against the defendant.
(2.)The defendant resisted the suit by raising various contentions as per his written statement at Exhibit 7. While admitting to have passed the rent-note in respect of the suit shop in favour of the plaintiff he contended that he was not entitled to recover possession thereof on the ground alleged by the plaintiff in as much as he had never refused to execute a rent note in favour of the mortgagee and that he was ready and willing to execute the same in his favour. He further contended that he had spent a large sum in repairing the suit shop and also in getting electric connection and that it was agreed between them that he shall not be evicted till he occupied the same. He also contended that the rent note was not admissible in evidence as it was not registered and that the suit was not maintainable thereon.
(3.)Various issues were accordingly raised by the trial Court as per Exhibit II and in its opinion the respondent was entitled to a decree for eviction as he had proved his claim that the notice was legal; that the defendant failed to prove any agreement that he was not liable for eviction. He however did not decide the question relating to the amount said to have been spent by the defendant in getting the shop repaired and also in getting electric fittings in the shop. In the result it passed a decree directing the defendant to handover vacant possession of the suit shop described in Exhibit 14 on or before Kartik Sud 1st S.Y. 2020. It further directed the defendant to pay costs of suit of the plaintiff and bear his own. The future mesne profits were to be ascertained on an application made by the plaintiff under Order 20 Rule 12 of the Civil Procedure Code. Feeling dissatisfied with that order passed on June 1963 by Mr. C. A. Bhojani Civil Judge Junior Division Kalawad the defendant filed Regular Civil Appeal No. 124 of 1963 in the Court of the District Judge at Jamnagar