Dr. Vineet Kothari, J. - (1.) THIS second appeal is arising out of the judgment and decree dated 27.10.2004 passed by the learned Additional District Judge No. 3, Jodhpur in Civil First (Decree) Appeal No. 46/2002 "Smt. Sunder Devi Vs. Jhumar Lal" who allowed the appeal filed by the present respondent -plaintiff -landlord and set aside the judgment and decree to the extent of dismissal of suit for eviction dated 27.04.2002 passed in Civil Original Suit No. 59/2000 "Sunder Devi Vs. Jhumar Lal" by the learned Additional Civil Judge (Junior Division) & Judicial Magistrate, First Class No. 1, Jodhpur (Raj.) whereby, the suit filed by the plaintiff -landlord for eviction of the tenant -Jhumar Lal. The learned First Appellate Court, while setting aside the judgment and decree of the learned Trial Court directed the defendant -tenant to hand over the vacant possession of the suit shop to the plaintiff within a period of two months and also rejected the cross -objections filed by the defendant -tenant, while maintaining the judgment and decree of the learned Trial Court in relation to the rent of the disputed shop.
(2.) THE present second appeal has been filed by the appellant, who was the defendant -tenant before the learned Trial Court, against the reversal of the finding of the learned Trial Court by the learned First Appellate Court whereby, he was directed to hand over the vacant possession of the suit shop within a period of two months. The brief fact of the case are as follows: That the plaintiff -landlord filed the suit (No. 59/2000) seeking eviction of the defendant -tenant with the averments that the she has a house at Plot No. 178 situated in the Jodhpur City at Masuriya, Near Dalley Khan Ki Chakki. It was averred that in the south side of the house towards the road, three shops were constructed and the present defendant is the tenant of one of them. The rent of the suit shop was stated at Rs. 600/ - per month. The plaintiff averred that the questioned shop is required for his son, who is doing the work of mechanic and presently he is unemployed. The claim of recovery of arrears of rent was also raised by the plaintiff. The plaintiff had made certain other averments and it was prayed that she may given a decree of eviction and arrears of rent.
(3.) BY filing the written statement to the suit aforesaid, the defendant denied the relationship of landlord -tenant with the plaintiff. It was averred by the defendant -tenant that he had taken the suit shop from the husband of the plaintiff. The rate of rent was also disputed by the defendant -tenant by saying that the rent was fixed at Rs. 300/ - per month. The defendant also averred that the entire rent has been paid to the husband of the plaintiff and, therefore, no arrears of rent become due. The claim of bona fide need of the suit shop for the son of the plaintiff was also denied. The defendant had also made several other averments in the written statement and also filed counter -claim for fixing the rent of suit shop at Rs. 200/ -.;