Vineet Kothari, J. - (1.) THIS second appeal has been filed by defendant -tenant under Section 100 CPC being aggrieved by the judgment and decree of eviction passed by the first appellate court on 4/7/2008 while allowing the appeal No. 79/2005 of plaintiff landlord as the learned trial court had dismissed the suit filed by plaintiff landlord seeking eviction on 4/2/2005.
(2.) THE plaintiff respondent sought the eviction of the suit shop on the ground of default in payment of rent as well as personal bonaflde need of the plaintiff for his son - Mohdv Sharif for carrying on his business of sale of cattle feed as the market has shops of such nature and defendant himself was carrying on the business of cattle feed. The learned trial court dismissed the suit of plaintiff -landlord on the ground that there was no default in payment of rent as the tenancy was on year to year basis vide Ex.A -1 to A -4 rent receipts produced by the defendant tenant which established the payment of rent on annual basis to the plaintiff and, therefore, the default of six months as required under Section 13(1)(a) of the Act of 1950 was not established. Regarding personal bonafide necessity, the learned trial court found that plaintiff had two other shops also for which he had filed eviction suit and since the son for whom the said shop was claimed by the plaintiff landlord was running a car taxi and, therefore, had to remain mostly out of Bikaner and, therefore, there was no bonafide need for the plaintiff landlord to claim eviction of the suit shop in question and plaintiff himself was doing the work as a contractor. Thus, both the issues were decided against the plaintiff.
(3.) THE first appellate court, however, reversed these findings and held that there was no yearly lease in favour of the defendant tenant as the yearly lease of immovable property could not be there as per Section 107 of Transfer of Property Act without such contract or such lease being registered with the competent authority. The appellate Court for the said finding relied upon the decision of Hon'ble Supreme court in the case of Samir Mukherjee v. : [2001]3SCR88 and two other judgments of Allahabad High Court and Kerala High Court respectively in para No. 10 of its judgment. The first appellate Court, therefore, held that the tenancy was on month to month basis and since the rent was not paid by the appellant defendant after 1.4.199ft upto the date when the present suit was filed on 9/4/1997, a default of more than six months had occurred and since during the pendency of suit the second default had also occurred, the defendant was not entitled to protection of first default as provided under Section 13(6) of the Act. The learned appellate Court also noticed that on 23/7/2004 the trial court had struck off the defence of defendant upon an application under Section 13(5) of the Act filed by the plaintiff landlord and said order dated 23/7/2004 was not challenged by the defendant and, therefore, the eviction decree was liable to be passed on the ground of default. On issue No. 2 and 3 about the personal bonafide need of the plaintiff for his son to carry on his business, the learned first appellate court held that merely because plaintiffs son Mohd. Sharif was running a car taxi which was registered in his own name, it was not enough to hold that plaintiff could not have personal bonafide need for his business. He could always arrange funds by selling his car taxi to start his business of cattle feed. Thus, the learned appellate court held that the personal bonafide need was established by the plaintiff landlord and he was entitled to a decree of eviction. Being aggrieved by the said decision of first appellate court the defendant tenant had approached this Court by way of present second appeal.;