P.P. Naolekar, J. - (1.) The first respondent Smt. Sarita Singh filed a suit for ejectment for the suit shop situated at Bikaner on the ground that respondent No.2 is the tenant of the shop at the rent of Rs. 300/- per month. The second respondent paid the rent up to June, 1981 only and thereafter, is in arrears of rent and that the appellants are the sub tenants inducted by second respondent without the consent of the first respondent landlord. The second respondent did not enter appearance and the proceedings were taken ex-parte against him. The appellants filed a joint written statement contending that shop was given by the first respondent on rent through her mother Smt. Kanta Khatooriya. They have denied the subtenancy and arrears of rent.
(2.) The trial Court has dismissed the suit filed by the first respondent. The lower Appellate Court has allowed the appeal and has relied upon the following circumstances for holding that the appellants are inducted as sub-tenants by respondent No. 2 without the consent of the landlord, respondent No. 1:- (1) That it is the case of the defendant-appellants that it was agreed that rent shall be paid to the second respondent and he shall in turn hand-over the rent to the first,respondent landlord and he was to act as a guarantor for payment of the rent, but in the evidence a different story was put forth. that the rent was directly paid and accepted by the first respondent landlord which impairs the credibility of the appellants version. (2) No rent receipts have been produced by the tenant. (3) Account Books showing entries of the payment of the-rent not produced, although, maintenance of the account books and making of the entries thereof is admitted by the appellants. (4) Satyanarain, respondent No. 2 has not been examined as the witness. (5) No steps have been taken for the production of Kirayanama said to have been executed between the appellants and the landlord.
(3.) The appellants' case that neither plaintiff nor her mother was examined and, therefore, an adverse inference should be drawn was also considered by the first appellate Court before arriving at the conclusion that the appellants are the sub-tenants of the second respondent in the suit premises without the consent of the first respondent.;