- (1.) This second appeal has been filed by the defendant - tenant aggrieved by the concurrent findings of eviction on the ground of bonafide necessity of landlord and subletting.
(2.) Without challenging these findings of facts, which resulted in eviction decree against the defendant - tenant, the only point pressed before this Court for admission of the present second appeal is that the suit property; a shop situated at Bhilwara had been partitioned and therefore, the suit for eviction could not be maintained in respect of partitioned suit premises by one of the co-sharers only, namely, Arun Kumar for whose bonafide need, the suit for eviction was decreed.
(3.) The learned counsel for the defendants - appellants through Sh. L.R. Mehta, Advocate relying upon the judgment of the Hon'ble Supreme Court in the case of M/s Kalooram Govindram vs. Commissioner of Income Tax, 1966 AIR(SC) 4 urged that in view of admission in the plaint itself that the suit property had been partitioned, for share of other co-parceners, the present suit could not be maintained by Arun Kumar one of the LRs. of original plaintiff Raj Mal S/O Indra Mal Bardia. The issue No.1(Ka) in this regard framed as additional issue has been decided by both the courts below against the defendant and the Courts below have held that issue of title in eviction suit is not relevant and even if there is partition of suit property, the shop in question, one of the co-sharers could maintain the suit particularly when no other co-sharers have raised any objection in this regard and tenancy cannot be split up upon such partition and therefore, the eviction decree on the aforesaid ground of bonafide necessity and subletting was granted. The first appellate court also upheld the same vide para 49 of the impugned judgment of the first appellate Court dtd.24.3.2011 in which the appellate Court has held that no evidence was led by the plaintiff about the said partition, which was admittedly oral and such partition made on 1.11.1980 was not by metes and bounds and therefore, upon the death of original landlord Sh. Raj Mal, his all LRs. were taken on record and thus, Arun Kumar alone was not pursuing the suit for eviction. Moreover no objection was raised on behalf of any of the co-sharers about eviction decree being granted for claimed bonafide necessity of one of the LRs., namely, Arun Kumar. Mr. L.R. Mehta, Sr. Advocate, therefore, urged that substantial question of law arises in the present second appeal.;