IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL ON THE 6^th OF FEBRUARY, 2025 SECOND APPEAL NO. 608 OF 2007 VINOD KUMAR JAISWAL Versus DASHRATH PRASAD JAISWAL Appearance:

Shri Ashok Lalwani, Senior Advocate with Shri Abhishek Singh, Advocate for appellant.

No one is appearing for respondent despite service of notice and representation through counsel.

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JUDGMENT This second appeal has been preferred by the appellant/plaintiff challenging the judgment and decree dtd.19.02.2007 passed by 3^rd Additional District Judge (Fast Track Court), Katni in Civil Appeal No. 50-A/2006 reversing the judgment and decree dtd.30.07.2004 passed by 3^rd Civil Judge Class-I, Katni in Civil Suit No.39-A/2004 whereby trial Court decreed appellant/plaintiff’s suit for eviction holding the respondent/defendant to be licensee and in appeal filed by defendant, the suit has been dismissed vide impugned judgment and decree dtd.19.02.2007.

2. In short the facts are that the appellant/plaintiff had instituted a suit for eviction and arrears of rent with the allegations that the plaintiff is owner of the rented premises, which was given to defendant 1-Harprasad (who died during the suit and his name was deleted by the plaintiff) for non-residential purpose on rent of Rs.40/- per month, but he had sublet the premises to the defendant 2-Dashrath Prasad, in which he is carrying out a paan shop. In the east there is a shop (admeasuring 7’x30’) of the plaintiff in which he is carrying out his business of manufacturing trunk and drum, which is not sufficient for the plaintiff’s business, hence the plaintiff is in need of the suit shop for his business and there is no other alternate accommodation available with him in the township of Katni. It is alleged that on 03.04.1984, a notice was issued to the defendant, but was refused to accept by him and the defendant 1 is in arrears of rent w.e.f. 01.04.1984. By way of amendment, it is alleged that if the Court comes to conclusion that defendant-Dashrath Prasad is not tenant of the plaintiff then by issuing permanent injunction, he be evicted from the premises. With these allegations, the suit was filed.

3. The defendant-Dashrath Prasad only appeared and filed written statement denying the plaint allegations and contended that he is not tenant of the plaintiff, as no agreement of tenancy was executed in between plaintiff and Harprasad. It is contended that suit premises was of the possession of Lt. Jwala Prasad, who kept his sister’s son Dashrath Prasad with him in the year 1960, who was taking care of flour mill’s business of Jwala Prasad and after death of Jwala Prasad in the year 1976, he received the shop as his legal heir. It is contended that in the year 1977 Kashi Prasad Jaiswal (father of plaintiff) got the adjacent portion from defendant Dashrath himself for the business of plaintiff in which he is doing manufacturing business of trunk and drum. It is contended that Harprasad never remained in possession and defendant-Dashrath never received possession of the premises from Harprasad as sub-tenant or otherwise. It is also contended that he never received any notice sent by the plaintiff, nor the plaintiff is in need of the rented premises for alleged business and the defendant is not liable to make any payment of rent. It is also contended that the plaintiff is not entitled for relief of possession in the garb of decree of permanent injunction. On inter alia contentions, the suit was prayed to be dismissed.

4. On the basis of pleadings of parties, trial Court framed issues and recorded evidence of the parties. In support of his case the plaintiff examined himself-Vinod Kumar Jaiswal (PW/1) and produced documents (Ex.P/1 to P/6). The defendant also examined himself i.e. Dashrath Prasad (DW/1), however he did not produce any documentary evidence. Upon consideration of the same, trial Court vide judgment and decree dtd.30.0