Dr. Vineet Kothari, J. - (1.) PLAINTIFF -appellant Naveen Kumar is aggrieved by the reversal of the eviction decree by the first appellate court of ADJ, Phalodi in appeal no. 5/2009 filed by the defendant Ashok son Askaran on 9/2/2010 reversing the decree dated 17/4/2009 passed by the learned trial court in civil suit no. 10/2006 -Naveen Kumar vs. Ashok.
(2.) THE eviction suit was filed in respect of suit shop situated at Phalodi, Jodhpur by terminating the lease by registered notice of the plaintiff dated 15/2/2006 and for handing over the possession of the suit shop in question to the plaintiff and for payment of arrears of rent from 1.9.2005 to March, 2006. The suit was contested by the defendant but the same was decreed by the learned trial court on 17/4/2009 in favour of the plaintiff. The first appellate court, however, allowed the appeal of the defendant on 9/2/2010 mainly on the ground that the plaintiff -Naveen Kumar failed to establish the relationship of landlord and tenant on the basis of rent receipts and the notice terminating the lease under Section 106 of the Transfer of Property Act, since the Rent Control law did not apply to Phalodi, the place where the suit shop is situated, and since the rent note was executed by his father Jai Prakash, who in his statement said that the tenancy was created by his other son Lal Chand, therefore, in the absence of the factum of relationship of landlord and tenant having been established by the plaintiff Naveen Kumar, he was not entitled to the eviction decree.
(3.) IN the present appeal, the coordinate bench of this Court framed the following substantial questions of law while admitting the appeal on 5/4/2010: - "(1) That whether the learned lower Appellate Court was right in reversing the findings of the learned Trial Court on issue Nos. 1 and 5 and in holding that no relationship of landlord and tenant existed between the parties despite the fact that the appellant is the owner of the premises? (2) That whether the findings arrived at by the learned lower Appellate Court on various issues are vitiated on account of mis -reading, non -reading and reading the material and evidence available on record in between the lines? (3) That whether the findings of the learned lower Appellate Court on issue nos. 2 and 7 are liable to be quashed and set aside being based on misconception of facts & law? (4) That whether the first Appellate Court was right in discarding the rent receipts by which the respondent -defendant has paid the rent to the appellant -plaintiff -;