Judgment

SHARMA. J. :- The appellant is in possession of a shop in a town in Madhyd Pradesh a Pradesh as a tenant under the respondent who filed a suit out of which the present appeal arises for his eviction on the ground of personal necessity. The suit was dismissed by the trial court and the first appellate court. The High Court in second appeal has reversed the decision and passed a decree.

2. The case is governed by the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as the Act) and S. 12(1)(f) deals with the ground of landlords bona fide necessity with reference to buldings let out for non-residential purposes, in the following words :-

"12. Restriction on eviction of tenants.- (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely :

(a) ...........................

(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned:

(g)...................."

3. The plaintiff claims that he requires the shop personally for starting a business and it is rightly contended by Mr. Kacker, learned counsel appearing for the appellant, that it is essential for him to establish that he is the owner of the premises. A perusal of the language of the cl. (f) and a comparison thereof with that in the other clauses clearly leads to this conclusion. The issue in the case is whether the plaintiff, respondent before us, has been able to establish this condition.

4. The defendant has been admittedly paying the rent to the plaintiff who, therefore, is included in the expression landlord as defined in the Act as a person receiving or entitled to receive the rent whether on his own account or on account of I any other person. In the register of the Municipal Corporation the property stands in the name of the plaintiffs brother Hukum Chand Jain. On this ground the trial court rejected the plaintiffs case that the shop belongs to him. On appeal the Additional District Judge. Gwalior, confirmed the finding mainly on the ground that the plaintiff did not produce the deed of partition which is alleged to have been executed by the parties and under which the house was claimed by the plaintiff to have been allotted to him. The Court also held that since the plaintiff failed to plead his ownership and further neglected to get his plaint amended after his title was denied in the written statement. he was not entitled to rely on any evidence in support of his title. On the plaintiff filing a second appeal, the Madhya Pradesh High Court reversed the finding and decreed the suit.

5. Mr. Kacker strongly urged that the concurrent finding of fact recorded by the first two courts was binding on the High Court under S. 100 Civil P.C. and its reversal is illegal. We have gone through all the three judgments and some of the documents placed before us by the learned counsel for the parties and we find that the High Court was fully justified in reversing the finding. The first appellate court was not correct in assuming that the plaintiff had failed to assert in the plaint his ownership of the disputed shop. The necessary pleading is to be found in para 1 of the plaint, which of course was denied in the written statement and the parties led their evidence on this question at the trial. It is true that the partition deed under which the plaintiff claims exclusive title to the property was not produced in court, but the first appellate court was under a duty to consider all the releva