LODHA, J - (1.) THIS is a defendant's second appeal arising out of a suit for ejectment as well as arrears of rent and mesne profits. The relevant facts giving rise to this appeal may be stated within a narrow compass. There is a building situate on Srinagar Road in Ajmer belonging to the plaintiff Shrimad Dayanand Orphanage, Ajmer. Some apartments of this building on the ground floor as well as on the first floor were rented out to the defendant-appellant Rampal by a rent note dated 17th December, 1962 (marked Ex.1). The plaintiff's case is that the defendant Rampal sublet a portion of the leased premises without the permission of the landlord and had thereby incurred the liability of being evicted from the premises in question. Another ground relied upon by the plaintiff for ejecting the defendant is that the defendant had built a suitable residence for himself behind Aryanagar and had shifted to that house. It may be stated here that the plaintiff had also relied upon certain other grounds such as carrying out unauthorised additions and alterations in the leased premises, encroaching upon certain apartments which had not been leased out, so on and so forth, but it is not necessary to make any detailed reference to the other grounds as the same have not been relied upon by the plaintiff either in the lower courts or in this Court. After serving a notice of ejectment as required under sec. 106 of the Transfer of Property Act, the plaintiff brought the present suit in the court of Munsif, Ajmer City (East) Ajmer on 11-5-1964 against the defendant for ejectment as well as for arrears of rent and mesne profits after the date of service of notice of ejectment. The defendant resisted the plaintiff's suit and pleaded inter alia that he had not sublet any part of the leased premises in contravention of the terms of the rent-note. After recording evidence led by the parties, the learned Munsif held that no sub-letting without the permission of the landlord had been proved. He also came to the conclusion that the plaintiff had failed to prove that the defendant had built suitable residence behind Aryanagar and had occupied the same In view of these findings, the learned Munsif dismissed the plaintiff's suit for ejectment though a decree for arrears of rent as claimed was passed. It may be observed here that there is no dispute between the parties regarding the arrears of rent and the decree awarded by the trial court in this respect.
(2.) DISSATISFIED with the judgment and decree of the trial court, the plaintiff filed an appeal in the court of the District Judge, Ajmer who by his judgment and decree dated 11th October, 1968 reversed the findings of the trial court both on the question of sub-letting as well as building a suitable house by the tenant-defendant and in the result allowed the appeal, set aside the judgment and decree of the trial court and decreed the plaintiff's suit for ejectment from the premises in question. Consequently, the defendant has come in second appeal to this court. Learned counsel for the appellant, in the first instance, argued that the first appellate court had committed an error of law in allowing the plaintiff to adduce additional evidence. It is urged that the requirements of Order 41, rule 27 C. P. G. were not satisfied and, therefore, the order of the learned District Judge dated 7th September, 1967, by which the plaintiff's application for additional evidence was allowed deserves to be quashed. In the second place, he has argued that the learned District Judge did not apply his mind to the evidence led by the parties on the question of sub-letting and did not correctly appreciate the scope of sec. 13 (1) (e) and sec. 13 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (which will hereinafter be called the Act). Lastly, it has been contended that the house in which the defendant has admittedly built behind Aryanagar is not at all suitable for the residence of the defendant, and, therefore, the conditions laid down in sec. 13 (1) (i) are not satisfied. It is thus urged that both the grounds raised on sec. 13(1) (e) and (i) relied upon by the plaintiff for eviction of the defendant have not been substantiated and the decree for ejectment passed by the learned District Judge is untenable. For a correct appraisal of the points raised by learned counsel for the appellant, it would be necessary to refer to the allegations and the evidence in some detail led by the parties in the trial court, both on the question of subletting as well as on the question of acquisition of suitable residence by the defendant-tenant. It is not disputed between the parties that by the rent note Ex. 1 the defendant-tenant was permitted to sub-let one small shop at the corner of the street and four shops from the street side facing Srinagar Road and three rooms on their back on the ground floor of the leased premises. It was, however, made clear that the defendant would not be entitled to sub-let any portion of the first floor consisting of two living rooms, a kitchen, a bath room and a tin-shed verandah, and also two shops on the ground floor. The plaintiff's allegation in para 4 ( a ) of the plaint is that defendant had sub-let the first floor and the shops and rooms on the ground floor in contravention of term No. 3 of the lease deed. The allegation in the plaint is undoubtedly not as specific and detailed as it should have been, but since the defendant did not raise any objection nor asked for any further and better particulars and allowed the case to proceed to trial, the lack of clarity in respect of the pleading therefore is not of much consequence. It is not disputed between the parties that one Satya Narain is occupying the first floor in the leased premises. The plaintiff's case is that he is a sub-tenant of the defendant or, at any rate, the defendant had assigned or otherwise parted with the possession of a part of the first floor to Satya Narayan without the permission of the landlord. It is not the case of the defendant that the landlord had ever given permission for admitting sub-tenant in the first floor. But his contention is that Satyanarayan is his real brother and is living in commonality with him and, therefore, no presumption of sub-letting can be drawn in the case of Satya Narayan who is a member of the defendant's family. The plaintiff has examined P. W. 1 Shri D. Vable, President of Shrimad Dayanand Orphanage and five more witnesses. In rebuttal, the defendant has examined himself as D. W. 1 and also one more witness D. W. 2 Nauratanmal in the trial court. Shri Vable has stated that Satyanarayan was previously residing in different premises though belonging to the plaintiff's institution and after Rampal had shifted to the house newly built by him behind Aryanagar Staya Narayan shifted to the suit premises and started residing in the first floor. P. W. 2 Ramsingh who lives in the same locality at a distance of about 100 Paondas from the leased premises states that Satyanarayan is the real brother of defendant Rampal and previously used to reside on the ground floor of the premises in dispute and that he had been brought up by the defendant Rampal, his elder brother who had also performed Satynarayan's marriage. P. W. 4 Ambalal states that he has been seeing Satyanarayan, Nathulal Sharma and a Sikh gentleman living in the premises in question along with the defendant for 2\ years P. W. 5 Mukanlal has also stated that Satyanarayan has been living on the first floor in the leased out premises for 2 to 2-1/2 years. He has also stated that even though Satya Narayan is the younger brother of Rampal, yet he has always been living separately from Rampal. P. W. 6 Shanti Devi has stated that her house is situated at a very short distance from the premises in question and that the first floor in the leased out premises is occupied by the defendant's younger brother Satyanarayan. In cross examination she states that she had not seen Satyanarayan living with Rampal. She is unable to depose as to how many members are there in Rampal's family. As against this evidence produced by the plaintiff, D. W. I Rampal, the defendant, has stated that he and Satyanarayan had a common mess and that he has been looking after Satyanarayan ever since the latter's birth and that he has not sub-let any part of the leased out premises to Satyanarayan. In the course of corss examination he states that formerly, besides the premises in suit, three more shops belonging to the plaintiff were leased out to him and at that time, Satyanarayan used to reside in the back portion of those shops. He has refuted the suggestion made to him that before 1962 A D Satyanarayan used to pay Rs. 15/- per month as rent to the plaintiff D.W. 2 Nauratanmal has corroborated the statement of the defendant Rampal and has stated that Satyanarayan resides with Rampal. In cross examination Nauratanmal has stated that ever since he came up of age, he has been seeing Satyanarayan living with Rampal, There is thus no direct evidence that Rampal ever charged any rent from Satyanarayan. The learned District Judge has relied upon the presumption contained in sec. 13 (2) of the Act and has held that Satyanarayan cannot be said to be living in commensality with Rampal. He has not referred to the evidence produced by the parties in this respect. However, from the gist of the evidence which I have mentioned above, it is clear that Satyanarayan is the younger brother of Rampal defendant and has been living with him. It is also clear from the statement of Rampal that they have a common mess. Learned counsel for the respondent has urged that the defendant has not produced Satya Narayan in evidence in support of his case and, therefore, an adverse inference should be drawn against him. One thing, however is clear and it is this that Satya Narayan has been living with Rampal since long and the statement of Rampal that they are messing together has not been controverted by any of the witnesses produced by the plaintiff. It is correct that Mr. Vable and P. W. 6 Shanti Devi have stated that Satyanarayan is separate from Rampal, but they have not disclosed the source of their knowledge in this respect. The learned District Judge has observed that there is no evidence to show that Satya Narayan is dependent upon Rampal nor is it the case of the defendant that Satyanarayan has been living as his guest or as servant and that the presumption of their being joint in food cannot be drawn as Rampal has gone in adoption to his uncle Madhoram Satyanarayan may not be dependent as such upon Rampal as he himself is also an earning member as he is an employee in the Railway drawing Rs. 150/- per month, yet, if they are joint in food, it would be reasonable to presume that Satyanarayan is living in commensality with Rampal. As I have already observed above, there is definite evidence of Rampal that he and Satyanarayan have a common mess and there is no reason to discard this part of the testimony of Rampal. In this view of the matter, no presumption can be drawn under sec. 13 (2) of the Act and I am not prepared to hold that Satyanarayan is living as a sub-tenant in the premises in question. What appears to me is that Satyanarayan and the members of his family are messing with Rampal and Rampal is keeping Satyanarayan with him, the latter being his younger brother and in that capacity he is living with Rampal in the premises in question. I, therefore, find myself difficult to agree with the learned District Judge that the defendant has sub-let a part of the premises to Satyanarayan and has therefore rendered himself liable to ejectment. This brings me to the next important question namely, whether the defendant has built or acquired vacant possession of a suitable residence ? D.W.I Rampal has himself admitted that he has constructed a house behind Aryanagar and on the ground floor of this house there are five rooms, a verandah in front of them, a kitchen, a bath room and a flush latrine. On the first floor, it is stated by him, there are three rooms, one kitchen, one latrine and a bath room. He also admits that there is a verandah on the first floor as well as a terrace too. He has further admitted in the course of examination that he has been running a factory in the name and style of "Radiant Industries of India" since about 1961 and the factory is being run on the open ground adjoining his house under a tin Shed. In the suit premises admittedly on the first floor there are two rooms, one latrine, one bath room and one kitchen and on the ground floor there are four shops and three rooms in the back. Admittedly, two shops have been sub-let to Nanakram and Thakurdas and the rooms in the back portion are also not in possession of the defendant. The defendant's case is that his employees who work in the factory live in these rooms. The defendant has admitted that his married sons, their wives and children and the third unmarried son and two unmarried daughters are living on the first floor of his newly built house and that he and his wife are still occupying the first floor of the leased out premises along with Satyanarayan. He admits that two rooms on the" ground floor of the newly built house are used for the purpose of storing articles and for purposes of office and one room is used for guests. Making allowance for all this, two rooms are still left for the use of the house owner in the newly built premises on the ground floor. Then again, it is significant that the telephone in the name of the defendant is installed in his newly built house which was previously fixed in the suit premises. Learned counsel for the appellant urges that the accomodation in the newly built house is neither suitable nor sufficient for the residence of the defendant. He submits that on account of the insufficiency of accommodation in that house, the defendant, his wife, Satyanarayan and the latter's family are still living in the leased out premises, Here it may be relevant to state that in order to lend further support to his case, the plaintiff sought to produce some additional evidence in the first appellate court. It is alleged that this additional evidence came into existence after the plaintiff's evidence had been closed in the trial court. The additional evidence which was sought to be produced by an application under Order 41 rule 27 C.P.C. and which has been admitted by the first appellate court by its order dated 7-9-1967 consists of two applications made by Rampal and his wife that their names may be entered in voters' list in the ward in which their newly built house is situate as they are residing there. The plaintiff also produced a copy of the corrected voter's list in accordance with the applications. The learned District Judge held that this evidence was required by the court for a proper decision of the case and there was substantial cause for admitting the same. A great deal of argument was advanced at the bar on the question whether it was open to the learned District Judge to have admitted this evidence at the stage at which he did without hearing arguments on the appeal itself. Learned counsel for respondent has endeavoured to show that some arguments on the main appeal had been heard at the time when the application for additional evidence was allowed. Mr. Agarwal has hotly contested that it was at a very preliminary stage when the first apppellate court had not applied its mind to the material on the record that this application was allowed. However, it is not clear to me whether in fact, the first appellate court had really heard the appeal on merits before allowing the application for additional evidence under Order 41 rule 27 of the Code of Civil Procedure. It has not been disputed by learned counsel for the respondent that an appellate court acquires jurisdiction for admitting additional evidence only when it has applied its mind to the merits of the case after taking the material on the record into consideration and I too am of opinion that this concession has been made very fairly at the bar by learned counsel for respondent as there is high authority in support of this proposition. Reference in this connection may be made to Arjan Singh Appellant vs. Kartar Singh Respondents), Parsotim Thakur and other Appellants vs Lal Mohar Thakur Respondents(2) and Kessowji Issur-Plaintiff and Great Indian Peninsular Railway Go. Defendants(3). In this state of circumstances, it would be proper not to act on the additional evidence which has been admitted by the learned District Judge. But even exclusion of that evidence from consideration would, in my opinion, not make any difference in the merits of this point. The object of putting this additional evidence was obviously to show that the defendant had actually shifted to the newly built premises. So far as applicability of sec. 13(l)(i) is concerned, it is wholly immaterial whether the defendant has actually started residing in the newly built premises or has occupied a part of it ? All that the court has to see in this respect is whether the tenant has built or acquired vacant possession of a suitable residence. The emphasis of the learned counsel for the appellants on the question of suitability of the residence. I have, however, carefully considered this aspect of the case and am of opinion that the house which the defendant has built behind Aryanagar and which, is, according to the defendant himself, occupied by his family is quite suitable for his residence. Looking to the accommodation available in the leased out premises, by no standard can the new house built by the defendant be considered as insufficient or not suitable to his requirements. It is more than clear that there are about eight rooms in the newly built house besides flush latrines, bathroom and kitchen etc. It would be most inequitable for the tenant to plead that he is not satisfied with the ordinary comforts in the house built by him. Moreover, in the present case, I am inclined to think that Rampal has practically shifted, to all intents and purposes, to his newly built residence where the whole of his family including the unmarried daughters and the unmarried son are living. It passes my comprehension that even though his factory is run just near his residential house and even though the whole of his family is living there, still he continues to live in the leased out premises alone with his wife and his brother Satyanarayan. An argument was raised at the bar that, at any rate, the premises would not be sufficient for the residence of Satyanarayan's family. It may be observed that Satynarayan is an earning member and has been living with Rampal on account of the accommodation shown by the elder brother to the younger brother and, therefore, if Rampal still desires to show accommodation to him, it is for the former to squeeze his needs for the sake of his brother. But on that score he cannot urge that the house he has built is not suitable. That apart, I am of the view that even if Satyanarayan continues to live with Rampal, he can live in the newly built house. The learned District Judge has also come to the conclusion that the newly built house provides a suitable accommodation for the residence of the defendant and his family. No doubt, he has not discussed this matter in detail, but after a careful scrutiny of all the circumstances, as stated above, I am firmly of the opinion that the plaintiff has succeeded in establishing that the defendant has built a suitable residence for himself behind Aryanagar and the same is in his occupation. In this view of the matter, the plaintiff is entitled to succeed under sec. 13(l)(i) of the Act for getting a decree for ejectment. No other point was argued in the case. As a result of the foregoing discussion, I uphold the judgment and decree of the lower court dated 11-12-1968 and hereby dismiss this appeal. In the circumstances of the case, however, I leave the parties to bear their own costs in this court. Learned counsel for the appellant prays for leave to appeal to a Division Bench. However, I do not consider it to be a fit case for grant of leave. The prayer is disallowed. Learned counsel for the appellant prays for two months time to give vacant possession of the premises in question to the plaintiff respondent. Taking all the circumstances into consideration, I hereby direct that the decree for ejectment shall not be executed for a period of two months from today provided the appellant deposits in court or pays to the respondent all arears of rent/mesne profits due upto the end of July within 15 days from today and pays the monthly rent hereafter within ten days of its falling due. ;