- (1.) The appeal of the appellants no.1 and 2 has been dismissed by the order of this Court dated 10.2.2004, hence, the appeal filed by the appellant no.3 alone survives.
(2.) Heard learned counsel for the parties. Following substantial question of law is involved in this appeal :- "Whether the courts below could have passed the decree against the defendants no.1 and 2 for obtaining the possession from the defendant no.3 to hand over the possession of rented premises to the plaintiff or could have decreed only the decree for symbolic possession against the appellant no.3." At the request of learned counsel for the parties, both the counsels were heard on merits.
(3.) Learned counsel for the appellant submitted that the appellant no.3 is tenant in the suit property and in the suit for specific performance of contract, decree for eviction of tenant cannot be passed. A tenant cannot be evicted unless he incurs any disqualification to hold the property as tenant and a decree is passed by the competent court of law for his eviction under any law and particularly, at present under Rajasthan Rent Control Act, 2001 and before that under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It is also submitted that it is settled law that in a case for decree of possession against the title holder/landlord of the tenant, only decree for symbolic possession can be passed and not of actual physical possession.;