C.M.LODHA, J. - (1.) THE defendant Bhagwat Prasad has filed this second appeal from the judgment and decree by the District Judge, Bharatpur dated 8 -11 -1966 by which the plaintiff -respondent's suit for ejectment from the shop in dispute was decreed.
(2.) PLAINTIFF -respondent Dwarka Prasad leased out the shop in question situated in Deeg on 28 -3 -1955 to the defendant on a monthly rent of Rs. 20/ -, and he filed the present suit in the Court of Munsiff, Deeg on 18 -5 -1965 for eviction on two grounds viz that he required the shop in question for his own reasonable and bonafide necessity &that; the defendant had sublet the shop in question to one Gulab and Ishardas. The defendant denied the allegations regarding personal necessity of the landlord as well as subletting. After recording the evidence of the parties the trial court held that neither the reasonable and bonafide necessity of the plaintiff had been established, nor it was proved that the defendant had sublet the shop in question to either Gulab or Ishardas. Consequently the plaintiff's suit was dismissed. The plaintiff Dwarka Prasad then filed an appeal from the judgment and decree of the trial court and the same has been allowed by the District Judge, Bharatpur and the plaintiff's suit for eviction has been decreed. The learned District Judge has concurred in the finding of the trial court that the reasonable and bonafide necessity of the plaintiff was not established. On the question of subletting he has come to the conclusion that subletting of the shop by the plaintiff to Gulab and Ishardas as such is not proved but it was nevertheless established that the defendant had parted with the possession of the property to Gulab and Ishardas and thereby incurred the liability to be ejected under Section l3(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Aggrieved by the judgment and decree of the first appellate court the defendant has come in second appeal to this Court.
(3.) LEARNED Counsel for the appellant has submitted that the plaintiff had not come forward with the case of parting with the possession of the property. but had only set up a case of subletting, which having failed it was not open to the first appellate court to have granted relief to the plaintiff on the basis of a new case of parting with the possession of the shop in dispute by the landlord In the second place he has argued that all that has. been established by the plaintiff on the record is that Gulab used to sit on the shop in question off and on for the purpose of doing a minor job of a tailor such as fixing buttons on clothes and therefore it cannot be salt that the defendant had parted with the possession of the shop. So also with respect to Ishardas the contention of the learned Counsel is that the shop in question is situated in a vegetable market and merely because Ishardas some times used to put a few vegetables in the shop though he carried his business in front of the shop on the public road or 'Farad' as it is called, it cannot be said that Ishardas had been given possession of the shop by defendant. On the other band Mr. H.P. Gupta, learned Counsel for the respondent has submitted that the facts established on the record and the finding arrived at by the learned District Judge clearly show that the defendant had parted with the possession of the shop in favour of Gulab and Ishardas and this finding being one of fact cannot be inteferred with in second appeal.He has also urged that the finding of the two courts below against the plaintiff on the question of reasonable and bonafide necessity, deserves to be set aside.;