1. - This is first appeal filed by defendants against judgment and decree dated 14.10.1996 passed by learned Additional District Judge No.3, Jaipur City, Jaipur, in Civil Suit No.423/1995, whereby learned trial court decreed the plaintiff's suit for eviction. This appeal was admitted to hearing on 23.11.1998 and interim order was also passed.

2. Though the matter has come up for orders on an application filed by plaintiff-respondent for award of mesne profit but, on request of learned counsel for both the parties and keeping in view of the fact that plaintiff-respondent Nirmaldas is a senior citizen aged about 85 years, appeal has been heard finally.

3. Plaintiff filed a suit for eviction against defendant for eviction on the ground of sub-letting, non-user of the shop and default in payment of rent, for which issues no.1, 2 and 6 were framed respectively. Learned trial court decided the issue no.1 regarding sub-letting in favour of plaintiff and against defendants. Issue no.2 regarding non-user of shop for last eight months from the date of filing of the suit was also decided in favour of plaintiff and against defendant. Remaining issues No.3 to 6 including the issue no.6 regarding default were decided in favour of the plaintiff. The suit was decreed in favour of plaintiff and against defendant. Defendant was directed to pay to plaintiff rent at the rate of Rs. 300/- per month from 21.01.1985. Hence this regular first appeal on behalf of defendant.

4. Shri R.K. Agarwal, learned Senior Counsel appearing on behalf defendant-appellants, has argued that the suit was originally filed against Shyamdas and Mohanlal and, on death of Shyamdas, his son Gagandas substituted him as defendant. Plaintiff did not at all prove the sub-letting of the shop in dispute. In this connection learned Senior Counsel referred to statement of plaintiff Nirmaldas (PW-1), who, in his evidence, stated that he came to know from his neighbours that defendant no.1 has sublet his shop to defendant no.2 on receiving a sum of Rs. 20,000/- as pagri (royalty), and that this part of statement of PW-1 is nothing but hear-say, which is not admissible in evidence, This witness, in his statement, has neither named any such neighbour nor was any such neighbour produced in evidence. Learned senior counsel argued that a partnership firm was formed with tenant and one Mohanlal, respectively, with 30% and 70% shares. Partnership deed (Exhibit A-1) was also produced on record of the trial court. This partnership firm was formed even before the death of original tenant Shyamdas, who died on 15.10.1987. When specific query was put to PW-1 Nirmaldas in his cross-examination, he failed to deny that their existed a partnership firm between them. In this connection, learned senior counsel also referred to statements of Danumal (DW-4) and Manakchand (DW-6), who also proved existence of partnership firm. The learned trial court has been unduly influenced by the fact that the account books of the partnership firm were not produced. The firm was doing a minor work of cycle repairs with a very small income. The fact that record of the accounts were not produced could not therefore be blown out of proportion to hold it to be a case of sub-letting.Shri R.K. Agarwal, learned Senior Counsel for defendant-appellant, on the question of non-user, argued that plaintiff Nirmaldas (PW-1) in his examination in chief, has stated that the shop was lying closed for last about three years whereas the suit was filed by the plaintiff on 16.05.1993 and statement of the plaintiff was recorded on 12.07.1991 which was more than three and half years after the date of filing of the suit. It was argued that factum of sub-letting could not be proved unless it was proved to the satisfaction of the trial court that there was transfer of legal possession of the suit property by the tenant in favour of third party from whom he used to receive the rent and burden of proof in this respect was entirely on the