PRASAD, J. - (1.) HEARD.
(2.) THERE principal question have been raised by the learned counsel for the appellant in this second appeal. The appellant has two shops in his possession belonging to the landlord. One of the shops has been ordered to be evicted for the purposes of satisfying the needs of the son Gopal of landlord. According to the learned counsel for the appellant the need of Gopal was not specifically pleaded by the landlord because Gopal was said to be doing nothing. This is on record that Gopal is in possession of a rented shop and therefore, the learned counsel for the appellant submits that in terms of Section 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as `the Rent Control Act', there is a suitable premises available in possession of Gopal, therefore, no eviction could have been ordered for the purposes of requirement of Gopal, younger son of the plaintiff. Learned counsel for the appellant has cited decisions of Supreme Court Charan Das Duggal vs. Brahma Nand (1) and Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (2), to emphasises that when a reasonable and suitable accommodation is in possession of the landlord, then the eviction should not be ordered. I have perused both the judgments. The question which was inherent in these cases was that the landlord was having his own house and not a rented premise. The question which is to be answered in this appeal is that the landlord's son Gopal had rented premise. The law cannot be said to mean that landlord has to live in a rented premise to accommodate a tenant. In this view of the matter, these two Supreme Court decisions will not govern the facts of this appeal. More so, there is nothing in the Statute either in Section 13 or Section 14 of the Rent Control Act to say that when the landlord is in a rented premises, he cannot ask to vacate the tenant for the need of his family. There being no primary law, any interpretation of fact and reasonable necessity given by any court will not be in the form of statute as has been held by Supreme Court in `haryana Financial Corporation & Anr. vs. Jagdamba Oil Mills & Anr. The judgment says that the judgments are not be read as statutes Primary law is statutory law where there being no prohibition to landlord to ask for his own premises, if he needs it. If he has rented premises and both the courts below have held in favour of the landlord, in second appeal, the said question cannot be gone into in favour of the tenant. Learned counsel for the appellant has further based his arguments on the basis of judgment of Allahabad High Court in the case of `mohammad Sayeed vs. District Judge Almora & Anr. (4) and that of Calcutta High Court in the case of Sonabati Devi & Ors. vs. Achyutanand Dey & Anr. Though these judgments are primarily not binding on this Court but even if taking persuasive value of these judgments, this court feels that two courts below have already held in favour of the landlord, it would not be proper for this court to construe such substantial question of law for re-appreciating evidence in the second appeal. Therefore, these cases do not govern the case in hand.
(3.) ANOTHER question raised by the learned counsel for the appellant is regarding fixation of the standard rent. Learned counsel for the appeal submits that in 1968 the rent was Rs. 56/- per months and in 2001, the court had fixed Rs. 750/- as rent for one shop whereas, both the shops were rented on Rs. 56/- per month. If the price escalation is considered, then in 1968, the prices of commodities and the prices of commodities today, having been taken note of by the courts below and a sum of Rs. 750/- having been fixed for one shop, this court feels that this does not make out a case for interference in second appeal. When two courts concurrently held Rs. 750/- as a reasonable sum, then no substantial question of law is considered to emerge out from the facts of this case which requires interference in the second appeal. The third question raised by the learned counsel for the appellant was that earlier he has been paying rent to three brothers including the plaintiff in this case. Later on, they had partitioned and only one of them has instituted suit. According to the learned counsel for the appellant, there is no registered partition and therefore, it cannot be said that one of them was entitled to file the suit in question. I have considered the submissions made on behalf of the learned counsel for the appellant. The question of ownership of the premises would not be germane in this case because according to the Control of Rent Act, the term landlord has been defined and according to it, the landlord is one who receives the rent. Plaintiff has been receiving the rent alongwith his brothers, therefore, in terms of the definition of the landlord, one third of the right of the plaintiff was always there and that being the position, the dispute of brother cannot be permitted to brought to the defence of the tenant because out of the three brothers, one of them who used to receive the rent as landlord has filed the suit, therefore, it is not such a lapse which would not to to the root of the matter. When both the courts have not gone into the question to favour the appellant, this court will not touch the question because atleast one third of the rights of the plaintiff are recognised by the appellant because admittedly, he had one third share in the property. Therefore, it is not a case, where the suit is filed by a person who has absolutely no right. ;