The word "occupation" in Section 11(b) of the Marwar House Rent Control Act, 1949, is not restricted to residence but includes any use which would be beneficial to the landlord, such as carrying on business.

BAPNA, J.

( 1 ) THIS is a second appeal by the defendant in a suit for recovery of rent and ejectment.

( 2 ) THE case for the plaintiff-respondent is that the defendant rented certain premises mentioned in para (1) of the plaint from the plaintiff at a rent of Rs. 8/- per mensem by a deed dated Poh Sudi 1, Smt. 2002. Thereafter the plaintiff wanted to build a second storey and it was alleged that the defendant agreed to vacate the premises, or to pay Rs. IV- for the upper storey and Rs. 8/- for the lower storey as rent per mensem. It was alleged that after the upper storey was built the defendant took possession of it without permission of the plaintiff but did, not pay Rs. 23/- as agreed upon and also refused to vacate the premises. A notice was served but to no effect. The plaintiff claimed Rs. 31/8/by way of rent in arrears and prayed for ejectment of the defendant on the ground that it was required for his bona fide personal necessity.

( 3 ) THE defendant admitted the tenancy but pleaded that his possession over the upper storey was in pursuance of the agreement with the plaintiff to occupy the upper storey along with such portion as remained with the defendant in the lower storey at the same rate of Rs. 8/- per mensem. He denied having agreed to pay Rs. 23/- per mensem as alleged by the plaintiff. He pleaded that the plaintiff had no personal necessity to occupy the premises. In the additional pleas it was mentioned that the premises when taken on rent by the defendant consisted of single storey and the plaintiff converted all the rooms in the lower storey into shops with the consent of the defendant. It was alleged that the plaintiff had agreed to let the defendant in occupation of the upper storey at the same rent of Rs. 8/- per mensem and the defendant agreed to pay the same rent although the area of occupation had become much less.

( 4 ) THE trial Court after evidence passed a decree in favour of the plaintiff against the defendant for eviction but held that the rent payable was only Rs. 8/- per mensem and the defendant was directed to pay at that rate till he was evicted.

( 5 ) THE defendant filed an appeal and the learned District Judge agreed with the lower Court that the plaintiff having intended to install a flour mill in one of the shops into which the lower storey had been converted, required the premises for his own use, and saw no reason to differ from the lower Court as regards decree for ejectment so far as the lower storey was concerned. He however, was of the view that as the defendant was alleged to have taken possession of the upper storey without permission of the plaintiff, he could not be said to be a tenant of the plaintiff and as such the decree for ejectment from the upper storey had been erroneously given as in respect of that property the relationship of landlord and tenant could not be said to have been established. He directed that the claim of the plaintiff as regards ejectment from the upper storey will stand dismissed and the defendant will have the right of passage through the lower storey so long as he remained in lawful possession of the upper storey. He left the parties to bear their own costs in the appeal and as regards the costs of the lower Court, the plaintiff was allowed costs only to the extent of his success treating the rent at Rs. 8/- per mensem. The defendant has come up in appeal while the plaintiff has filed cross-objections.

( 6 ) IT was urged that the plaintiff had failed to prove that he required the premises for his own use. It was further argued that according to the Marwar house Rent Control Act, which was in force on the date of the institution of the suit, ejectment could only be allowed, as laid down by Section 11, Marwar house Rent Control Act, 1949, viz. , "

(a) if the tenant fails to pay the rent for three successive months or is a habitual-defaulter; (b) if the house is reasonably and in good faith required by the landlord for his own occupation o