- (1.) THE plaintiff ­ appellant, landlord ­ Basantilal s/o Jaichand has filed the present second appeal against the defendants ­ respondents, tenants Mohammad Hussain and others under Section 100 CPC on 04.01.1995 being aggrieved by the judgment and decree of the learned first Appellate Court of District Judge, Bhilwara, allowing the defendants ­ tenants' Appeal No.134/99 ­ Mohammad Hussain and others vs. Basantilal and another on 28.11.1994, reversing the judgment and eviction decree of the learned trial court of Civil Judge, Bhilwara decreeing the eviction Suit No.32/1976 ­ Basantilal vs. Mohammad Hussain and others on 20.11.1989.
(2.) THE plaintiff ­ landlord, Basantilal s/o Jaichand Kothari filed this eviction suit on 31.08.1976 in respect of suit shop situated at Petch Area, Bhopalganj, Bhilwara to the defendant No.1 Mohammad Hussain s/o Ahmadnoor, inter alia, on the ground of sub-letting of the suit shop in question in favour of the defendant No.3 Abdul Latif s/o Chand Khanji. The plaintiff ­ appellant set up the case that, in fact, the original tenant Mohammad Hussain sublet the said suit shop to different tenants from time to time and he himself took a shop on rent from one Shobha Lal at the back side of the suit shop and started his own Cycle Shop, which was earlier being done in the suit shop. The other defendants / sub-tenants Abdul Latif s/o Chand Khanji, Peer Mohammad and his son Munna @ Bashir Mohammad @ Shabbir Mohammed and Shabbir s/o Gafoorji and they were doing initially the business of tailoring in the name and style of M/s. Fancy Tailor and later on started Shoe business in the name of M/s. Kanpur Boot House in the suit shop and thus the plaintiff ­ landlord submitted before the learned trial court that on account of such sub-letting in sequence, the original tenant Mohammad Hussain and sub-lettees, who were also earlier arrayed as defendants, are liable to be evicted from the suit shop in question. The learned trial court after recording the evidence decreed the eviction suit on 20.11.1989 and fixed the mesne profits @ Rs.180.00 per month. The First Appeal filed by the defendants ­ tenants i.e. all the four Mohammad Hussain s/o Ahmadnoor, Shabbir s/o Gafoorji, Abdul Latif s/o Chand Khanji and Munna alias Bashir Mohammed @ Shabbir Mohammed s/o Peer Mohammed came to be allowed by the learned Appellate Court of District Judge, Bhilwara on 28.11.1994 deciding the said Additional Issue No.1 of subletting in favour of the defendants ­ tenants and against the plaintiff ­ landlord. Being aggrieved by the same, the plaintiff ­ landlord approached this Court by way of present Second Appeal and while admitting the same, a co-ordinate Bench of this Court framed the following substantial questions of law on 15.09.1997. "1. Whether the tenant ­ defendant ­ appellant can be allowed to travel beyond his pleadings ? 2. Whether the learned first appellate court was required to be meet with the cogent and convincing reasons given by learend trial court before setting aside the finding of sub-letting recorded by latter while discussing additional issues No.1 and 4, if so, its effects ?
(3.) LEARNED counsel for the plaintiff ­ appellant ­ landlord, Mr. R.R. Nagori, Sr. Advocate and Mr. Alkesh Agarwal submitted that the learned trial court, based on relevant and cogent evidence had proved that the original tenant Mohammad Hussain had parted with the possession of the suit shop in question in favour of Abdul Latif, who was a government school teacher and he subsequently further subletted the said suit shop to Shabbir s/o Gafoorji and later on to Peer Mohammad and his son Munna alias Bashir Mohammed @ Shabbir Mohammad. The plaintiff ­ landlord also produced photographs Ex.2 showing the Sign Board of M/s. Fancy Tailors with Abdul Latif sitting in the said shop and also Ex. 13 and 16 applications by Peer Mohammad under the Shop and Establishment Act seeking permission of the competent authority in the name and style of M/s. Kanpur Boot House and Ex. 16 in the name and style of M/s. Fancy Tailors for tailoring business.;