Hon'ble Dr. KOTHARI, J.—The present second appeal has been filed by the appellants-plaintiffs-landlord in this Court on 06.09.1994 aggrieved by the judgment and decree of learned lower appellate court of Additional District Judge, No.2, Jodhpur allowing defendant-tenant's first appeal being Civil Appeal No.36/94- Mohan Lal S/o Moolchand vs. Sampat Raj and Devraj, both sons of Sh. Kanhaiyalal. The learned lower appellate court below reversed the judgment and eviction decree dated 17.02.1994 passed by learned trial court of Munsif & Judicial Magistrate, Pipar City, District Jodhpur in Civil Suit No.1/87- Sampat Raj & Anr. vs. Mohan Lal, which was filed in respect of suit premises, a residential house, situated in “Dhooton-ka-Mohalla”, Pipar City, Jodhpur, which was initially let-out to the defendant-tenant way back on 24.08.1979 for a monthly rent of Rs.11/- only.

2. The learned trial court, inter-alia, had decreed the eviction suit filed by the plaintiff-appellant on the ground grounds specified in Section 13 (1) (i) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950, (for brevity, hereinafter referred to as 'Act of 1950') on the ground that alternative accommodation had become available to the defendant-tenant as he purchased a residential house in the same locality, namely, “Dhooton-ka-Mohalla”, Pipar City in the name of his wife, namely, Smt. Sohini Devi on 06.03.1987 by a registered sale-deed for Rs.26,880/-, Exhibit-4 on record. The defence of the tenant, Mohan Lal that he was not in good terms with his wife and was living separately from his wife, was not believed by the learned trial court and the learned trial court held that for purchasing the house in the name of his wife, since money for such purchase was paid by the defendant-tenant himself and the registry of the house only was done in the name of his wife, relying upon the evidence of PW.1, namely, Manmal Chordia (power of attorney holder of the appellants-plaintiffs) and PW.2, namely, Amrit Lal (who sold the house to the defendant-tenant's wife Smt. Sohini Devi), the learned trial court granted the eviction decree in favour of landlord.

3. The learned lower appellate court below, however, allowed the appeal of the defendant-tenant and reversing the finding on Issue No.5, held that the husband and wife are two independent entities and disbelieving the evidence of PW.1, Manmal Chordia and PW.2 Amrit Lal, the learned lower appellate court held that even though the defendant-tenant failed to produce his wife, Smt. Sohini Devi, before the learned trial court as a witness, it could not be said that merely with the purchase of the residential house in her name, such alternative accommodation had become available to the defendant-tenant and consequently, the learned trial court was not justified in passing the eviction decree and appeal of the defendant-tenant was thus liable to be allowed.

4. The plaintiffs-landlord, accordingly, preferred this second appeal on 06.09.1994, on which a coordinate bench of this Court on 07.03.2006 framed the following three substantial questions of law for consideration: -

1. Whether the first appellate court erred in law in discarding the evidence of witness PW-1 Manmal for all purposes irrespective of the fact that statement of Manmal could have been admitted in evidence to prove the facts, which are in personal knowledge of the said witness and could have been proved by PW-1 Manmal?

2. Whether acquiring a suitable residential accommodation by spouse of the tenant is a acquisition of the vacant possession of the residential accommodation by the tenant in terms of Sub-Clause (i) of Sub-Section (1) of Section 13 of the Rajasthan Premises (Rent, Control and Eviction) Act, 1950?

3. Whether any of the legal representatives of the deceased tenant was entitled to protection under the provisions of the Act of 1950, in view of the fact that according to defendant himself none of the family member is residing with him at the time of his de

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