NAVIN CHANDRA SHARMA, J. - (1.) I have heard the learned Counsel for the parties in this Second Appeal, when the same was admitted on 3rd October, 1985,following two points were fromulated as arising for decision in appeal: (1) Whether the Courts below have erred in law in not considering the case for partial eviction in view of the mandate given by the legislature under Section 14 of the Rajasthan premises (Control of Rent and Eviction) Act? (2) Whether the Lower appellate Court seriously erred in holding and decreeing the suit of the Plaintiffs for arrears of rent which fell due during the life time of Lunidamal Without obtaining the probate of the will?
(2.) WITH regard to the first point, it was observed that the Courts below had not considered the aspect whether partial eviction of the tenant will meet the bonafide and reasonable necessity of the plaintiffs. This Court there fore framed an issue on the point and remitted the same to the Munsif, Pali for taking evidence on the issue and record its findings after affording both the parties on opportunity of hearing. The Munsif, Pali has sent his finding on the issue framed by this Court and has decided the issue in favour of landlords. The Munsif, Pali has held that partial eviction of the tenant from the suit premises will not meet the reasonable and bonafide necessity of the Plaintiffs. Thus the first point formulated by this Court on 3rd October 1985, should be decided against the appellant for the reason that it has been found as a fact by the first appellate Court that the suit premises are reasonably and bonafide required by the Plaintiffs -Landlords for their personal use and occupation. The Learned Counsel for the defendant -appellant, however, strenuously contended that it is an admitted fact that the suit premises were let out to the appellant by Lunidamal who has expired. The case of the plaintiffs was that Lunidamal had exeecuted a will in favour of the plaintiffs and on the death of Lunidamal on 24th April, 1975, they became landlords of the suit premises in relation to the appellant under the Will. It urged that the first appellate Court has erred in decreeing the suit of plaintiffs for arrears of rent for the period - -1st May, 1973 to 24th April, 1975 which had fallen due during the life time of the deceased Lunidamal without obtaining probate of the Will. It appears that the question regarding necessity to obtain probate was decided in favour of the plaintiffs by the trial Court on 28th March, 1979.
(3.) ISSUE No. 10 relating to this matter was not pressed before the first appellate court and arguments were confined by both the sides to issues No. 3 to 6 and, therefore, the first appellate Court did not deal with this matter.;