Prakash Tatia, J. - (1.) THIS is an appeal against the Judgment and decree dated 3.11.1979 passed by learned Addl. Distt. Judge, Bhilwara in civil original suit No. 35/77 (26/75) whereby the learned trial court dismissed the suit of the plaintiff -appellants filed for possession of the disputed property on the basis of decision given on issues No. 9 and 12.
(2.) BRIEF facts of the case are that the appellants -plaintiffs filed the suit against the defendants -respondents alleging that defendant No. 1 (subsequently expired) took on rent the disputed shop on 4.4.1954 and executed the rent -deed. The rent of premises was Rs. 133.7/ - per month. Plaintiff alleged that above suit shop is required for personal bonafide need of plaintiff and plaintiffs son. Earlier the plaintiffs filed the suit in the year 1964 in the court of Civil Judge on the basis of default in payment of rent and during the pendency of that suit, a new Section 13 -K of the Rajasthan Premises Control of Rent and Eviction Act was inserted and the defendants deposited the entire rent upto 31.7.1965 alongwith the cost of the suit. According to plaintiffs, defendants did not deposit rent amount which at the time of filing the suit was due in the defendants for 107 months. Rent due in the defendants was Rs. 14,278/ -. It was further alleged by plaintiffs that defendants Sub -letted the shop to the defendant No. 2 and possession of the disputed shop was handed over to the defendants without permission of the plaintiffs. The defendants renounce the character of the tenant and also challenged the title of the plaintiffs, therefore, on these grounds, suit was filed by the plaintiffs. The defendants submitted written statement and stated that in view of document dated 11.9.1967, the disputed premises became property of the defendants. In the above deed dated 11.9.1967, the plaintiffs sold the disputed property to the defendants and, therefore, there is no relationship of Landlord and tenant between the plaintiffs and defendants. In addition to above, defendants submitted that there is no personal bonafide need of plaintiffs for the suit premises nor they have committed any default in payment of rent. The defendants submitted that they paid Rs. 5000/ - in part performance of that sale for the disputed property against the total sale consideration of Rs. 71,000/ -. The plaintiffs failed to register the sale -deed in favour of the defendants. The defendants were ready and willing to perform their part of contract. The defendants also claimed benefit of Section 53 -A of the Transfer of Property Act.
(3.) THE trial court framed as many as 16 issues. Several documents were placed on record by both the parties. The plaintiff gave his statement on oath before the trial court and also produced the witness PW -2 Badri Lal; whereas defendants appeared in witness box and produced witnesses DW -2 Ismyle and DW -3 Barkat Ali. The plaintiffs also examined in rebuttal the evidence of defendants. The trial court decided the issue No. 1 in favour of plaintiffs holding that plaintiffs proved that disputed premises was let -out to the defendants by the plaintiffs on 4.4.1954 in the rent of Rs. 133.7/ - per month. The trial court decided issue No. 2 without giving any reason against the plaintiffs merely by saying that even when defendants did not rebutted the evidence of plaintiffs, but the plaintiffs cannot succeed because of the fact that defendants became the owner of the property. While deciding issue No. 3, trial court held that defendants did not pay the rent amount to the plaintiffs. The issue No. 4 was not pressed by the plaintiffs. While deciding issue No. 5, trial court observed that even when defendants claimed his title, even then defendants are not liable for eviction. Issue No. 6 was decided by the trial court holding that simply because there is partnership, it cannot be held that premises was given on some lease. Issue No. 7 was not pressed by the defendants. Issue Nos. 8 and 10 are not pressed by the defendants. Issue No. 11 was decided by the trial court by holding that in view of decision on issues No. 9 and 12 by document dated 11.9.1967, relations of plaintiffs and defendants have come to an end and the plaintiffs are not entitled for decree of possession, the defendants have not pressed the issue No. 14.;