The defendant's objection about the lack of pleading should be raised in the written statement and cannot be raised at a later stage, and voluntary contestation of the issue on merits waives the right to object to the lack of pleading.

Prakash Tatia, J.-Heard learned Counsel for the parties.

2. The appellant is aggrieved against the Judgment and decree of the two Courts below. The trial Court decreed the suit of the plaintiffs respondent against the defendant tenant on the ground of change of user, which is the ground for eviction under the provisions of Clause (d) of Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The appellate Court dismissed the appeal of the appellant vide Judgment and decree dated 03.09.2004.

3. Brief facts of the case are that plaintiffs filed the suit for eviction against the defendant alleging that suit property was let out to the defendant in the year 1973 and a rent deed was also executed by the defendant in favour of the plaintiffs on 19.01.1973. Rent deed provides the premises has been let out for residential purpose. According to plaintiffs, the defendant committed default in payment of rent and also started business of the electricity shop in the said room without the permission of the plaintiffs, therefore, defendant converted the residential premises into commercial premises, therefore, the decree may be granted against the tenant appellant for eviction.

4. The defendant appellant submitted written statement and denied the relationship of landlord and tenant between the plaintiff and defendant. The defendant came with a positive case that suit shop was taken on rent by his mother Smt. Sayer Devi. The defendant also denied the execution of the rent deed dated 19.03.1973. He submitted that the licence was obtained for running the shop in the name of his mother and the shop was never taken on rent for residential purpose. He also denied that he paid any rent to the landlords. The trial Court framed the issues. Before the trial Court, the plaintiff gave his own statement whereas defendant gave his statement and produced DW. 2 Anand Singh and DW. 3 Smt. Sayar Devi who are the brother and mother of the defendant respectively. The plaintiff produced the alleged rent deed also.

5. The trial Court considered the statement of the witnesses namely plaintiff , defendant, DW. 2 and DW. 3 and the rent deed. The trial Court while deciding Issue No. 1 observed that plaintiff stated on oath that the suit shop was let out to the defendant and the defendant lastly paid rent @ 85 per month. The rent was lastly increased on 28.02.1989. In cross-examination, he denied the suggestion of the defendant that Sayar Devi is the tenant. The trial Court while considering the statement of the appellant tenant DW. 1 Vijay Prakash observed that plaintiff in his cross-examination stated that he has no knowledge whether rent receipt is being issued in his name or not. The defendant admitted that he deposited the rent in Court after determination of the arrears of rent by the Court. However, according to defendant, the rent was paid to him by his mother. The appellant tenant also admitted that he has not produced any receipt in the name of his mother of the rent for the shop in question. The witness DW. 1 Anand Singh admitted that the rent receipts produced were in the name of his brother Vijay Prakash. The important witness DW. 3 Sayar Devi who according to defendant is the tenant in the shop, in her statement, stated that rent of the shop was deposited by either his brother Madan Singh or by Narpat Singh or by Surendra Singh. She also stated that she offered the rent of the shop to the landlords and

when it was not accepted, she deposited the rent in the Court. She further stated that there is no rent due in her. In cross-examination, she stated that since she was illiterate, therefore, she cannot say that whether the rent receipts were issued in the name of the defendant or not. She denied the suggestion that the rent receipts are in the name of defendant appellant.

6. It will be relevant to mention here that in cross-examination, at one place defendant himself stated that he took the room on rent bu