- (1.) This second appeal under Section 100 CPC is directed against judgment and decree dated 24.05.2004 passed by Additional District Judge, Nimbaheda, whereby, judgment and decree dated 21.03.2001 passed by Civil Judge (Junior Division), Nimbaheda has been upheld.
(2.) The facts in brief may be noticed thus: the plaintiffsrespondents filed a suit for eviction of the defendants-appellants from the suit premises alleging therein that late Abdul Karim was landlord and in the year 1956 he had let out the suit premises to Mohd. Tahir, who was father of defendant Nos. 1 and 2 and husband of respondent No. 3; the rent for a period of 34 years and 9 months was due against late Mohd. Tahir; Mohd. Tahir had sublet the suit premises to brother of defendant No. 4 and he further sublet the same to defendant No. 4; the defendants had made material alteration in the suit shop by raising construction; the eviction was sought on the grounds of default in payment of rent, subletting and material alteration in the suit premises.
(3.) The defendant Nos. 1 to 3 admitted the case of the plaintiffs, however, the defendant-appellant Nos. 4 and 5 filed written statement and resisted the suit, inter alia, with the averments that the suit premises was not a shop but the same were Kotadies and the premises was let out to late Shri Vishnuji, who was father of defendant No. 5 on a monthly rent of Rs.8/; at the time of death of Shri Vishnuji, Chhitar Mal, who was elder brother of late Shri Vishnuji was in possession of the suit premises and was carrying on business there; the rent was paid by the defendants to late Shri Abdul Karim; after death of Chhitar Mal and Vishnuji, the defendant Nos. 4 and 5 became tenants of Shri Abdul Karim and the construction was raised with the consent of Shri Abdul Karim 10 years before filing of the suit. The trial court framed as many as six issues; on behalf of the plaintiffs five witnesses were examined including defendant No. 1 as PW-3 and several documents were exhibited; on behalf of defendant Nos. 4 and 5 five witnesses were examined and certain documents were exhibited.;