Dr. Vineet Kothari, J. - (1.) THESE two appeals are filed by the defendants aggrieved by the judgment & decree of eviction dated 27/3/2009 passed by the learned Addl. District Judge (Fast Track), Abu Road in eviction suit no. 8/08 -Om Prakash vs. Kamla Devi & Ors. The decree was passed on the ground of subletting. The other grounds taken by the plaintiff -respondent were the bonafide necessity of the landlord and his family members including his brother and non -user of the suit property etc. The courts below decided all the issues in favour of plaintiff and granted the decree in favour of present respondent -plaintiff. The defendants have filed the present appeals being aggrieved by the said judgment and decree. By the interim order dated 28/10/2009 passed in CFA No. 334/2009, a coordinate bench of this Court stayed the execution of the judgment & decree dated 27/3/2009. In connected appeal No. 365/2009, on 1/12/2010, a coordinate bench disposed of the stay petition by observing that in view of the fact that execution of the impugned judgment and decree has already been stayed in connected appeal, no separate order is required.
(2.) LEARNED counsel for the defendants, Mr. Sajjan Singh submitted that the decree under appeal deserves to be set aside as it would appear from the application filed by the respondent plaintiff in this Court on 1/7/2014(I.A. No. 3108/2014) that since there has been partition of the suit property between the brothers, namely; present respondent -plaintiff -Om Prakash and his brothers, Rajendra Prasad and Hanuman Prasad of the suit property, the shop in question has fallen in the share of Rajendra Prasad, after the said partition on 16/11/2011 vide Annex. R./A/1 -partition deed, and the respondent -plaintiff is paying monthly rent of Rs. 3000/ - to his own brother. Mr. Sajjan Singh, learned counsel for the defendants submitted that the need for eviction which was sought for his brother Rajendra Prasad, since he himself became the owner of the suit property, now vanquished and cannot be sustained. Mr. Sajjan Singh also contended that the defendant -Kamla Devi had entered into the partnership with respondent no. 5 -Mr. Bharat s/o Kanti Lal Jain and since the landlord had accepted rent from the said Bharat Jain, therefore, the ground of subletting of suit shop to Mr. Bharat was also not sustainable and on this ground also the eviction decree deserve to be set aside and the appeal no. 365/2009 -Bharat vs. Om Prakash deserves to be allowed. He also urged that the ground of non -user of the property and subletting are mutually conflicting grounds, as the suit property at the same time cannot go into non -user and can also be sublet and, therefore, the decree deserves to be set aside.
(3.) PER contra, Mr. Manish Shishodia, learned counsel appearing for the respondent landlord submitted that the ground of non -user of the property was of the first floor of the suit property, which was used for residential purpose by the defendant and for considerable time the same was not used by the defendant tenant and that ground of non -user of first floor premise having been established by the landlord, the decree is sustainable on that ground. He also submitted that in the absence of any partnership deed produced by the defendants, there was no question of any acquiescence on the part of plaintiff -landlord about such partnership between them and since parting with the possession of the suit property in favour of the sublettee -Bharat Jain was proved by the landlord, therefore, the decree is sustainable even on that ground also.;