YADAV, J. - (1.) THE instant second appeal is preferred by the tenant defendant appellant, against the judgment and decree dated 03. 4. 99, passed by Additional District Judge No. 4, Jaipur City, Jaipur, in Regular First Appeal No. 93/97.
(2.) IT is to be noticed that after receipt of notice in the present second appeal, the landlord plaintiff respondent, filed cross-objection, under Order 41 Rule 22, CPC. I propose to decide second appeal as well as the cross-objection, by a composite order. Briefly stated, the facts of the present second appeal and cross-objection are as follows:- A suit for eviction, under the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (Act No. 17 of 1950) (hereinafter referred as "the Act No. 17 of 1950"), was filed on the ground of second default in payment of rent and personal bona fide necessity, as envisaged under clauses (a) and (h), respectively, of sub-section (1) of Section 13 of the said Act. In 'written-statement, the tenant defendant appellant denied the relationship of landlord and tenant, and claimed himself to be the owner of the property in dispute, on basis of adverse possession for being in continuous and uninterrupted possession for a period of more than 13 years. On the basis of the pleadings of the parties, 11 issues were framed by the learned trial court, out of which, all the issues are decided against the tenant defendant appellant by both the courts below, except Issue No. 2, which relates to the relationship of landlord and tenant. Issue No. 2 is decided in favour of the tenant defendant appellant, by both the courts below. The learned trial court, by its judgment and decree dated 03. 10. 97, decreed the plaintiff's suit for recovery of possession and for mesne profits at Rs. 45/- per month. The learned trial court decided Issues Nos. 1 and 9, in favour of the landlord plaintiff respondent and against the defendant and held that the landlord plaintiff respondent became the owner of the property in dispute, by virtue of registered gift-deed, made in her favour, by Smt. Sahodara Devi, and the case of the tenant defendant appellant as regards acquiring ownership by way of adverse possession, was rejected by learned trial court. Issue No. 3, as regards second default was also decided in favour of the landlord plaintiff respondent. Issues Nos. 4, 5 and 6, as regards reasonable and bona fide necessity, comparative hardship and partial eviction, were decided in favour of the landlord plaintiff respondent. However, Issue No. 2, as regards relationship of landlord plaintiff respondent and tenant defendant appellant, was decided by learned trial court, in negative, against the plaintiff and it was held that for want of proof of service of notice on the defendant as regards derivative title by virtue of gift- deed and attornment of tenancy could not be proved and thus, the relationship of landlord and tenant between the plaintiff and defendant was not created. The learned trial court decreed the plaintiff's suit for recovery of possession and mesne profits, on the basis of her title over the property in the dispute.
(3.) AGGRIEVED against the judgment and decree dated 03. 10. 97, passed by learned trial court, the tenant defendant appellant preferred a regular appeal No. 93/97, before the first appellate court, which was dismissed by first appellate court, vide its judgment and decree dated 03. 4. 99 and the judgment and decree passed by trial court, was affirmed. The cross-objection, filed by landlord plaintiff respondent was also dismissed by first appellate court. The learned first appellate court concurred with the findings of the trial court, on all issues, mentioned hereinabove. The present second appeal was admitted on 21. 10. 99, on the following substantial question of law: "whether in absence of relationship of landlord and tenant between the plaintiff and defendant, the decree of eviction could have been passed against the tenant. The aforesaid question arises in the peculiar facts and circumstances of this case since it transpires that the landlord to whom the defendant-appellant had been paying rent, expired and thereafter by virtue of a deed of gift the plaintiff-respondent filed a suit for eviction against the defendant-appellant. " I have heard the learned counsel for the parties, at length. ;