Hon'ble Dr. KOTHARI, J.—The appellants-plaintiffs (landlord), namely, Sunderlal S/o Bhagwan Das, Narain Das S/o Bhawan Das and Nirmal Kumari D/o Bhawan Das, have filed the present second appeal against the respondents-tenants (defendants), namely, Hairsh Kumar S/o Lokumal Singh Samija and Chandulal S/o Lokumal Singh Samija, being aggrieved by the judgment and decree dated 14.05.2001 passed by learned Additional District Judge, No.2, Bikaner in Civil Appeal No.133/1996-Harish Kumar & Anr. vs. Sunder Lal & Ors., by which the defendants-tenants' appeal was allowed and the suit filed by the plaintiffs for eviction was dismissed reversing the trial court's judgment. The learned trial court of Additional Civil Judge, Bikaner vide its judgment and decree dated 02.12.1992 had decreed the eviction suit filed by the plaintiffs-landlord being Eviction Suit No.103/1989- Sunder Lal & Ors. vs. Harish Kumar & Anr. on the ground of sub-letting by Chandu Lal in favour of Harish Kumar, his own brother.

2. Briefly stated, the facts of the case are that the appellants-plaintiffs filed the eviction suit against the defendants-tenants for eviction of the suit shop in question on the ground of default in making payment of monthly rent and sub-letting the suit shop to Harish Kumar (respondent No.1 herein) at monthly rent of Rs.200/-, initially, on 14.08.1971 the suit shop in question situated at 27, Station Road, Bikaner which was given on rent to the original defendant Chandu Lal S/o Lokumal Sindhi Sameja on a monthly rent of Rs.150/-. Although the shop in question was given on rent to defendant, namely, Chandu Lal, however, he later on, sub-let the suit shop to his real younger brother, namely, Harish Kumar.

3. The suit filed by the plaintiffs-appellants came to be decreed by the learned trial court vide judgment and decree dated 02.12.1992, inter-alia, on the ground of subletting by the original defendant-tenant, Chandu Lal to the defendant-respondent, Harish Kumar, his own younger brother. The issue No.2 framed by the learned trial court in this regard, was decided in favour plaintiffs-landlord by finding that the rent-note (Ex.1) was executed in favour of Chandu Lal, whereas the said Chandu Lal had parted with possession of the suit shop in favour of his brother Harish Kumar, who was having the trade licence to run the business in the said suit shop in his own name and since such parting with possession was without consent of the landlord, the said issue was decided in favour of plaintiffs and against the defendants No. 1 and 2 though the learned trial court found that the plaintiffs had failed to prove that the defendant No.2, Harish Kumar was paying rent of Rs.200/- to the original tenant No.1, Chandu Lal. The issue of default in payment of rent was also decided in favour of plaintiffs on the ground that since the premises, suit shop, was sublet to the defendant, Harish Kumar, the deposit of rent after 14.12.1980 by the defendant No.2, Harish Kumar also cannot be considered as a valid tender of rent and a sufficient discharge of obligation of the tenant, and, therefore, the default in payment of rent was also there.

4. The lower appellate court below, however, vide its judgment and decree dated 14.05.2001 reversed the findings of the learned trial court on Issue No.2 of subletting and giving the benefit of first default under Section 13 (6) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950, refused to grant eviction decree in favour of plaintiffs-landlord. The learned appellate court found that in the suit premises, Harish Kumar was only doing business since beginning and the rent in question was paid by him some times to the father of the plaintiffs, namely, Sh. Bhagwan Das and thereafter another brother Narain Das S/o Bhagwan Das vide Ex. A/259 to Ex. A/299; and since this was being done since 1976 itself, therefore, it cannot be said that the original tenant, Chandu Lal had parted with possession of the suit shop in favour of Ha

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