Dr. Vineet Kothari, J. - (1.) THIS second appeal is arising out of the judgment and decree dated 17.05.2003 passed by the learned Additional District Judge, Deedwana in Civil Appeal No. 2/1998 (148/198) "Sanwar Mal S/o Jagannath Mahajan Vs. LRs of Jagnath S/o Raghunath Tapadia" who allowed the appeal filed by the present respondent -defendant and reversed the judgment and decree dated 05.12.1997 passed by the learned Civil Judge (Junior Division), Deedwana in Civil Original Case No. 113/1993 "Jagan Nath S/o Raghunath Tapadia Vs. Sanwar Mal." By which, the learned Civil Judge (Junior Division) had decreed the suit filed by the plaintiff seeking recovery of arrears of rent and dispossession of the defendant from the suit shop situated at Deedwana, District Nagaur and granted eviction decree of the defendant -Sanwar Lal. But, by the judgment and decree dated 17.05.2003, the learned Appellate Court had set aside the judgment and decree dated 05.12.1997 hence, this second appeal has been preferred on behalf of the plaintiffs.
(2.) THE present second appeal has been filed by the appellants, who were the legal representatives of the deceased original plaintiff before the learned Trial Court, against the reversal of the judgment and decree of the learned Trial Court. The brief of the present case is as follows: That the original plaintiff Jagannath S/o late Shri Raghunath Maheshwari had filed the civil suit aforesaid (No. 113/1993) (Old No. 94/1992) with the averments that the defendant Sanwar Mal S/o late Shri Jagannath Kumpawat took the suit shop in question on a monthly rent of Rs. 500/ - per month on 01.09.1981 and executed a rent note on that day itself in favour of the plaintiff. It was stipulated in the rent note that the rent of the suit shop for every six months will be given in advance and the electricity charges will be separate from the rent. The plaintiff wanted eviction of the defendant on the ground of default in payment of rent. The ground of bona fide need of the suit shop in question for the son of the plaintiff was also raised. It was also averred that a two storey shop situated at Chokhadia Bheruji is owned by the defendant and was presently lying vacant and, therefore, the defendant could shift his business over there. Therefore, comparative hardship was alleged in favour of the plaintiff. In the last, the plaintiff had prayed for grant of eviction decree and also prayed for decree for due rent and mesne profits.
(3.) BY filing the written statement to the plaint aforesaid, the defendant denied the averments made by the plaintiff in the plaint and also averred that the all the major sons of the plaintiff, including Anil Kumar, for whose bona fide necessity was averred, are doing their respective business at Jodhpur, Deedwana and Sujangarh. Therefore, the bona fide necessity was denied by the defendant -tenant. It was also averred that the shop mentioned in para 3(3) of the plaintiff had come in the share of the elder brother namely, Ram Niwas and, therefore, the plaintiff had no right to claim ownership over the same. It was averred that except the suit shop in question, there was no shop with the defendant and his business is in good condition in this shop. Therefore, it was averred that the defendant will be facing more hardships by vacating the shop.;