- (1.) THE present appeal of defendants LRs. of Maga Ram is directed against the judgment and decree dtd.5.8.2011 passed by the learned Additional Dist. Judge (Fast Track) No.2, Jodhpur in Civil Appeal decree No.7/2010 � Smt. Gulab and ors. V/s LRs. of Maga Ram whereby the learned lower appellate court allowed the appeal and set aside the judgment and decree dtd.18.10.2010 passed by the learned Additional Civil Judge (J.D.) No.2, Jodhpur in Civil Original Suit No.161/2000 � Smt. Gulab and ors. V/s LRs. of Maga Ram whereby the learned trial Court dismissed the suit for eviction filed by the respondent � plaintiff in respect of suit premises situated at Station Road, Jodhpur.
(2.) THE learned counsel for the appellant submitted that appellante � tenant Maga Ram's son Dinesh was in Dubai for last 10 years prior to death of his father on 8.7.2000, but whenever he used to come to India, he used to help his father in the business and used to sit in the disputed shop. He further submitted that after death of his father Maga Ram, Dinesh started business in the suit shop. Mr.R.K.Thanvi, Sr. Advocate supported the impugned decree and submitted that admittedly since his son Dinesh was in Dubai for last 10 years, he cannot be said to be carrying on business ordinarily with the father in the tenanted shop and therefore he could not become tenant as defined under Section 3(vii) of the Act and rightly decree has been passed by the appellate court below. Having heard the learned counsel for the parties, and upon perusal of the reasons given by the court below, this Court is satisfied that no substantial question of law arises in the present second appeal of the defendant unless the said son Dinesh could be held to be ordinarily carrying on business with his father prior to his death, he could not inherit the tenancy, which stood terminated upon the death of the original tenant Maga Ram on 8.7.2000. The concurrent findings of facts recorded by the courts below are based on relevant evidence and do not give rise to any substantial question of law. Accordingly, the present appeal of defendant � LRs. of Maga Ram is found to be devoid of merit and the same is accordingly dismissed. No order as to costs. The appellant-defendant-tenants shall hand over the peaceful and vacant possession of the suit property viz. shop in question to the respondent-plaintiffs within a period of one year months from today i.e. on or before 31st August, 2013 and shall pay mesne profit @ Rs.1,000/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent also and in case there is any default in payment of mesne profit, the period of one year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendants shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiffs within three months from today, otherwise the same will bear interest @ 9% per annum. The tenants shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlord within a period of one year from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith. ;