TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE appellant/defendant is aggrieved against the judgment and decree dated 5. 9. 2003 by which the trial court decreed the suit of the plaintiff against the respondent/tenant for eviction and also aggrieved against the judgment and decree dated 6. 4. 2005 by which the first appellate court dismissed the appeal of the appellant/tenant. It will be appropriate to narrate the facts of the case because of the reason that it is third round of litigation between the landlord and tenant. First suit no. 59/1975 was filed by landlord Mohan Das against his original tenant Kalu Singh wherein ultimately, the matter was settled between the parties and the rent of suit shop was increased from Rs. 18/- to Rs. 40/- per month. Second suit no. 252/1991 was filed by landlord for eviction of tenant only on the ground of non-payment of rent. At this juncture, it will be worthwhile to mention here that even during pendency of first suit no. 59/1975, original tenant Kalu Singh died and his son Madan Singh, present appellant, was impleaded as party who entered into compromise and agreed to increase the rent from Rs. 18/- to Rs. 40/- per month.
(3.) IN the second suit also, the present appellant alone was party. During pendency of second suit no. 252/1991, landlord deceased Mohan Das filed the third suit no. 42/1999 against the present appellant on the grounds of material alteration in part of the leased property and on the ground of change of user as well as for parting with possession of the suit premises i. e. parties with one chabootari by present tenant Madan Singh. It is stated that second suit no. 252/1991 since was only on the ground of default and it was not contested, therefore, in second suit, the Court gave benefit of first default to the tenant and thereafter dismissed the suit so far as relief of eviction is concerned. As stated above, before decision of second suit no. 252/1991, the plaintiff filed the present suit no. 42/1999 for eviction on the grounds mentioned above. ;