- (1.) The defendants original tenants, Bhagwan Singh and sublettee Mohan Singh, both real brothers, have filed the present second appeal under Section 100 CPC against the eviction decree concurrently granted by two courts below in favour of respondent plaintiff-landlord, Smt. Vimla Devi w/o Om Prakash, in respect of suit shop situated at Tripolia Bazar, Jodhpur. The suit No.79/2002 [(Transferred Suit No. 46/2004) Vimla Devi vs. Bhagwan Singh & Anr.] was filed by the landlord Vimla Devi on the ground that suit shop was given on 18/5/1991 on the montly rent of Rs. 550/- to defendant no.1, Bhagwan Singh. The said defendant stopped giving rent from 1/11/2001 and the premises in question was sublet in favour of defendant no.2 - Mohan Singh. The Food Licence for running sweet shop was held by defendant no.2 Mohan Singh only. The learned trial court on the ground of subletting the suit shop by defendant no.1 in favour defendant no.2 decreed the suit on 9/8/2004.
(2.) The first appeal filed by the defendant-tenants was also dismissed vide judgment of learned Addl. District Judge (Fast Track No.4), Jodhpur on 28/11/2008 on the ground of aforesaid subletting of the suit shop and the appellate court affirmed the eviction decree. The defendant-tenants are before this Court in the present second appeal.
(3.) Mr. Manoj Bhandari, learned counsel appearing for the appellant-defendant-tenants relying upon the following case laws vehemently submitted that there was no parting with the possession by the defendant no.1 Bhagwan Singh in favour of defendant no.2 Mohan Singh and being real brothers, the defendant no.1 was looking after the business here at Jodhpur also and defendant no.1-Bhagwan Singh also frequently came down from Bikaner to Jodhpur to look after the said business and, therefore, the eviction on the ground of subletting is not justified and substantial question of law arises in the matter. (i) Binj Raj vs. Sukhdeo & Anr.,2006 2 DNJ 868 (ii) Delhi Stationers & Printers vs. Rajendra Kumar, 1990 2 SCC 331 (iii) Jagan Nath (deceased) through L.Rs vs. Chander Bhan & Ors., 1988 3 SCC 57 (iv) Hardev vs. Jaidev through his legal representatives, 2000 1 RajLW 407 (v) Parvinder Singh vs. Renu Gautam & Ors, 2004 4 SCC 794 (vi) Basanti Lal vs. Ram Chander, 2009 4 WLC(Raj) 566 ;