JAIN, J. - (1.) THIS second appeal has been filed against the Judgment of the learned Additional District Judge No. 2, Jodhpur dated September 8, 1993, allowing the appeal and setting aside the judgment of the learned Additional Civil Judge No. 2, Jodhpur dated March 30, 1991, dismissing the suit for ejectment.
(2.) THE facts of the case giving rise to this second appeal may be summarised thus. THE plaintiff-respondent filed a suit for recovery of arrears of rent and mesne profits and ejectment against the defendant-appellants with the averments, in short, as follows. THE suit shop was let out to Ramanna on monthly rent of Rs. 100/ -. He alone was doing business in it. THE tenancy automatically came to an end on his death. THE defendant No. l is his widow and the defendant No. 2 is said to be his adopted son. Rent has not been paid for more than six months by them. Ejectment notice was served upon the defendant No. l. She replied that after Ramann's death she and her adopted son became the tenants of the suit shop. In their written-statement, the defendants admit that Ramanna was tenant of the suit shop and after his death they are in its occupation and possession. THEy have further averred that during the life time of Ramanna they were looking after the business, after his death they became the tenants of the suit shop and they have not committed default in payment of rent. After framing necessary issues and recording the evidence of the parties the trial court held that after the death of Ramanna the defendants became the tenants of the suit shop, they deposited in time the amount of rent and interest determined, the defendant No. 2 is the adopted son of Ramanna and accordingly the trial court dismissed the suit. THE plaintiff- respondent preferred an appeal. It was allowed by the learned Additional District Judge No. 2, Jodhpur by his judgment dated September 8, 1993. It has been contended by the learned counsel for the defendant- appellants that the learned appellate court has seriously erred to follow Tara Chand vs. Ram Prasad (1), instead of Smt. Ramjeevani vs. Smt. Narati Bai (2), and in the case of Tara Chand vs. Ram Prasad (supra) the definition of tenant which was existing in the Rajasthan Premises (Control of Rent and Eviction) Act prior to its amendment by Rajasthan Act No. 14 of 1976 was under consideration. He also contended that the learned appellate court seriously erred to hold that the defendants were not looking after the business of Ramanna in the suit shop before his death. The learned counsel for the plaintiff-respondent duly supported the judgment of the learned Additional District Judge No. 2, Jodhpur. The first question for consideration in this case is whether Tara Chand vs. Ram Prasad (supra), is applicable in this case or not. It is not in dispute that the tenant Ramanna died after the definition of Tenant' is given in Section 3 (vii) of the Act was amended by Rajasthan Act No. 14 of 1976 and in the case Tara Chand v. Ram Prasad (supra), the definition of 'tenant' as given in the Act prior to the said amendment was involved. However, in the end of para no. 3 at page 530, it has been observed, in connection with the amended definition of Tenant' as follows : - "therefore, under the amended definition of tenant, if one seeks to make avail of the benefit of statutory tenancy under the Act, he must establish to the satisfaction of the court that the surviving spouse, son or daughter and other heir, in case of residential premises, he/she/they ordinarily had been residing in the premises along with the tenant and continued to do so till date of death of the tenant. Similarly, in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir 'as the case may be' ordinarily had been carrying on the business during the lifetime of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant. In other words to avail of the statutory right under Section 3 (vii) (b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy. " In view of these observations of their Lordships of the Supreme Court, the Full Bench decision reported in Smt. Ramjeevani vs. Smt. Narati Bai (supra), taking contrary view, is no more a good law. The learned first appellate Court rightly declined to follow it. According to the above quoted observations of their Lordships of the Supreme Court, the widow Mst. Usha and son Mukesh of the deceased tenant were also required to prove that they had been carrying on the business during the life time of the tenant Ramanna as members of the family in the demised premises and continued the business till the date of his death. The first appellate court has categorically held that the defendants Mst. Usha and Mukesh were not carrying on business in the suit shop prior to the death of the tenant Ramanna. This finding cannot be said to be perverse or contrary to record. Admittedly, Mukesh was a minor when the suit was filed. It has not been pleaded in the written statement that he was carrying on the business of his father till his death in the suit shop. It has been averred in it that the widow Mst. Usha was carrying on the business in the suit shop till his death. It is the admitted case of the parties that the tenant was carrying on business of type-repairing in the suit shop. Mst. Usha admitted in her cross-examination that she was not knowing type repairing and she used to visit the suit shop once in a week. It is a finding of fact. It is not open to challenge in second appeal.
(3.) NO substantial question of law is involved in the second appeal. Accordingly, the second appeal is dismissed. The defendant- appellants are given time upto December 31, 1994 to vacate the suit shop provided they remit the entire arrears of rent and mesne profits upto December 31, 1994 to the plaintiff through money-orders and submit an undertaking before the trial court to the effect that they will not part with the possession of the suit shop during this period and will deliver its actual and physical possession to the plaintiff by or on December 31, 1994, both within one month from today. .;