TATIA, J. - (1.) THIS second appeal by the plaintiff- appellant, is against the judgment and decree dated 5. 4. 1980 passed by the learned Addl. District Judge No. 2, Jodhpur whereby the learned Addl. District Judge No. 2 set aside the judgment and decree dated 24. 7. 1978 passed by the trial court decreeing the suit for eviction against respondent-defendant Smt. Chand Kumari (now deceased), under the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (for short the Act of 1950 ).
(2.) THE appellant-landlord-plaintiff filed the present suit for eviction of his respondent-tenant-defendants; Smt. Chand Kumari and her son Narendra Kumar. According to the plaintiff, the suit property described in para No. 1 of the plaint was let out to the defendants and the defendants were paying the rent @ of Rs. 50/- per month. According to plaintiff, the defendants have committed default in payment of rent as they did not pay the rent of the premises to the plaintiff from June, 1968 to April, 1970. THE plaintiff also claimed Rs. 500/- which was due in defendants on account of arrears of rent of the period prior to June 1968. THE second ground for eviction was subletting of the premises by the defendants after closer of their business, which they were running in the name of M/s. Ganesh Timber Co. , to one Shri Rashid and another person Shri Mukand Chand and to a Firm Shri Rathore Transport Third ground for decree for eviction against the tenant was the personal need of the plaintiff who intends to construct his house on the plot in dispute. The defendants' no. 1 and 2 submitted separate written statement but the pleading of both the defendants contains same defence and same additional pleas. According to th4defendants, the defendants are not tenants in the suit property and the defendants claimed the suit property being their ancestral property, therefore, they claimed that they have right to use the property as per their own wished. The defendants denied the payment of rent by them to the plaintiff at any time and further pleaded that the alleged sublettees are not doing any business in the suit property. In additional pleading, both the defendants submitted that defendant no. 1 was partner in the M/s. Ganesh Timber Company and she was not the proprietor. Defendants further submitted that defendant no. 1 invested Rs. 15,000/- in the suit property. The defendant No. 2 took a specific plea that defendant No. 2 was never appointed as agent by the defendant no. 1 nor he was given any power to do anything on behalf of defendant No. 1. The defendant No. 1 also pleaded, in same way, by saying that she never appointed defendant No. 2 as her agent nor defendant No. 2 was given any power by the defendant No. 1. When the defendants denied not only relation of landlord and tenant between the plaintiff and defendants but also pleaded that the suit property belongs to defendant no 1 and her husband, the plaintiff submitted rejoinder to the written statement. In rejoinder, the plaintiff again empathetically reiterated that defendants are the tenants of the plaintiff in the suit property and the defendants took the premises for the business of Ganesh Timber Company. The plaintiff also submitted the defendant No. 1 husband was in government service and he got started the business in the name of his wife, defendant No. 1 and his son defendant No. 1 was looking after the business and defendant No. 2 will pay the rent on behalf of both. It is also submitted that the defendant No. 1's husband was also used to work there. The plaintiff gave relevant details, how the rent was paid by the defendants, when rent was increased, about giving of rent receipts to the defendants, the detail of cheques by which the rent was paid by the defendants etc. The plaintiff thereafter submitted that rent was paid mostly by cheques and in case, any cash rent was paid it was through voucher and on printed receipts. The plaintiff submitted that at the time of letting out the premises, the plaintiff was living out from Jodhpur, therefore, the property was let out by the plaintiff's brother Shanti Lal, and he was receiving the rent on behalf of the plaintiff Since the defendant denied the title of the plaintiff therefore plaintiff submitted the Patta of the plot in dispute. The trial court granted permission to the defendant no. 1 to submit reply to the rejoinder filed by the plaintiff. In the reply to rejoinder, the defendant no. 1 stated that the property in dispute was in possession of the plaintiff's father Shri Kan Mal since last 40 years and he died in the year 1958. Before his death, Shri Kan Mal was doing business with one Madan Lal, in the name of Ganesh Timber Company. After the death of Kan Mal, the plaintiff became partner with Madan Lal. Madan Lal was looking after entire business and was keeping the accounts of the firm. All the relevant paper and books of accounts were with Madan Lal and he died, therefore, the defendants are not in possession of books of the firm and the relevant documents. According to the defendants, the business of Ganesh Timber Company increased and, therefore, Madan Lal took a plot on rent from plaintiff's brother Shanti Kumar in the month of November, 1962 on a rent of Rs. 23/- per month. The rent of this plot was increased to Rs. 42/- from 1. 1. 1965 and it was further increased of Rs. 50/- from 1. 1. 1966. The plaintiff pleaded that she is not remembering how and when the rent was paid and she is not remembering whether any cheques were given or not and whether any receipts were taken or not. The plot which was taken from Shanti Kumar on rent is situated in the south side of the plot in dispute, that too after a lane. it is further submitted that these facts (of taking on rent a land in the sought of the plot in dispute from Shanti Kumar) have nothing to do with the plot in dispute as the plot which was taken from Shanti Kumar was again handed over to Shanti Kumar on 1. 7. 1968. The trial court framed as many as 15 issues. Both the parties produced documentary and oral evidence. The trial court decided issue no. 1 in favour of the plaintiff and held that defendant no. 1 took the plot in dispute on rent from the plaintiff on 1. 1. 1962. The defendant no. 2 is not the tenant in the premises, he only paid the rent on behalf of the defendant no. 1. The trail court further held that since Shanti Kumar's plot was in occupation of other tenants from 1962 to 1968, therefore, defendants could not have occupied the plot of Shanti Kumar. The defendants further failed to prove the defendant No. 1's father-in-law was in old possession of the property in dispute as no independent witness was produced in support of the said plea of the defendants. The trial court considered the various documents produced by the plaintiff and held that the defendants' case, that they took one premises of Shanti Kumar on rent in the months of November, 1962 from plaintiff's brother Shanti Lal, stands falsified as if it was so then there was no reason for the defendants to pay the rent by cheques in the months of June, 1962, therefore, the trial court held that it was the payment of the rent of the disputed plot of the plaintiff through Shanti Lal as he was collecting the rent on behalf of the plaintiff for the plot in dispute. The trial court further, on the basis of the cheques of Rs. 42, Dt. 3. 7. 1962, Ex. 23, found that the case of the defendants, that rent was increased to Rs. 42/- from 1. 1. 1995 is wrong as the defendants were paying the rent @ Rs. 42/- even from before July, 1962. The trial court also critically examined the documents produced by the defendants, Ex. A-1 which is a letter signed by Shanti Kumar, plaintiff's brother addressed to the Administrator, Municipal Board, jodhpur Giving no objection for installing saw-mill and the alleged admission of Shanti Kumar, in his statement in court in this very case, wherein Shanti Kumar stated that he let out the property in dispute to Jaswant Mal, husband of defendant no. 1, and rejected the plea of the defendant about letting out the property in dispute to Jaswant Mal. The trial court further held that business in the name of Ganesh Timber Company was going on even prior to 1. 1. 1962 but it cannot be held that said business was in the property in dispute.
(3.) THE trial court held that rent of Rs. 500/- of the period falling before June, 1968 was also due in the defendants and since the defendants admittedly did not pay the rent as claimed by the plaintiff in the plaint till the decision of the suit, therefore, the defendant no. 1 is liable to be evicted from the property in dispute. THE trial court also decided the issues of personal bona fide necessity of the plaintiff and the issue of comparative hardship in favour of the plaintiff. However, the trial court decided the issue of subletting of the premises by the defendants against the plaintiff. Issue No. 6 was not decided by the trial court as this was an issue relating to the title of the disputed property and the issue was not pressed by the counsels for the defendants as it was beyond the jurisdiction of the court hearing the suit under Rent Control Act to adjudicate upon the title of property. The trial court decided issued no. 7 as not pressed and while deciding issue no. 8 and 13, held that defendants are not entitled for any special costs of damages. The trial court in issue no. 9 held that in case the plaintiff will evict the defendant No. 1, the defendant no. 1 will be free to take her fixtures which she installed in the premises. The trial court rejected the prayer of the defendants for reduction in rent of the premises. It was further held that defendant No. 2 was authorised by defendant No. 1 to pay the rent. Ultimately, the suit for eviction against the defendant no. 1 was decreed by the trial court on 24. 7. 1978. However, it is relevant to mention here that the trial court found that defendant No. 1 alone is tenant and defendant No. 2 is not the tenant, therefore dismissed the suit against defendant No. 2. Since the suit was decreed only against the defendant No. 1 alone, the defendant No. 1 Smt. Chand Kumari, without impleading defendant No. 2, preferred appeal against the judgment and decree of the trial court dated 24. 7. 1978. The plaintiff did not challenge the dismissal of suit against the defendant No. 2. The Appellate court allowed the appeal of the defendant and held that defendant no. 1 has not been proved to be tenant rather in view of the admission of the plaintiff's brother-witness Shanti Kumar, the defendant no. 1's husband Jaswant Mal is the tenant and since he is not party in the suit, therefore, suit of the plaintiff is liable to be dismissed. ;