Hon'ble Dr. KOTHARI, J.—The present second appeal has been filed by the appellant/defendant/tenant, Panmal S/o Nathmal Sindhi, aggrieved by the judgment and eviction decree dated 05.08.2008 passed by learned Additional District Judge No.2, Bikaner, in Civil Appeal No.66/2005, whereby the appeal filed by the respondent/plaintiff was allowed while reversing the judgment and decree dated 29.07.2003 passed by learned Civil Judge (Jr. Division), Doongargarh, in Original Suit No.132/1992, dismissing the plaintiff's suit for eviction on the ground of personal bonafide need of the plaintiff/landlord.

2. Briefly stated, the facts of the case are that the plaintiff/respondent filed a suit on 14.07.1992 seeking eviction of the present appellant/tenant on the ground of bonafide need of the suit shop for his son, namely, Suresh Kumar, material alternation in the suit suit without the prior permission of the plaintiff/landlord and recovery of rent from the suit premises i.e. shop in question situated in Ward No.15, Mohalla Mamasar-Ka-Bas, Near Bus Stand, Doongargarh, Bikaner. The suit shop was initially let out to the defendant at a monthly rent of Rs.81/- per month on 01.10.1973 and thereafter the same was increased to Rs.170/-. The suit shop was needed for starting business of son of the plaintiff, who wishes to run the business of selling tea in the suit shop.

3. The appellant/defendant upon receipt of the summons of the said suit submitted his written statement while denying the contents of the the plaint and also denied the bonafide need of the suit for the son of the plaintiff/landlord. The appellant/defendant questioned the bonafide need of the plaintiff/landlord and submitted that the plaintiff's son was doing the business of restaurant. The factum of material alteration was also denied while alleging that the same was got done with the prior permission of the landlord. The appellant also denied that any rent was lying outstanding. The family of the plaintiff is not a joinly family and all the family members viz. brothers are living separately and so also are doing their business separately.

4. The learned trial court had, however, not accepted the bonafide need of the landlord and dismissed the suit on 29.07.2003 on the ground that now the son (Suresh Kumar) of the landlord had separated from the family, therefore, such bonafide need could not be taken as a ground for eviction. The appellate court, however, reversed the said finding of the learned trial court and granted eviction decree vide the judgment and decree dated 05.08.2008 and being aggrieved by the same, the appellant/defendant, has filed the present second appeal, which was admitted by this Court vide order dated 19.11.2008 and the following substantial question of law was framed:

“That after partition of the property, prior to filing of the suit whether the father who is not the owner of the shop in question and is living separately, can prosecute the suit under Section 13 (1) (h) of the Act of 1950 for the bona fide need of the son in whose share the suit shop itself is allotted?”

5. Mr. Manoj Bhandari, learned counsel for the appellant/tenant relying upon the judgment of this Court in the case of Ratan Lal vs. Kanhaiya Lal reported in 1998(3) RLW Raj. 1435 and in the case of Nand Lal vs. Subhash Dev reported in 1980 RLW 490 and in the case of Rajinder Dhada vs. Jagdish Singh reported in 2001(10) JT 188, submitted the son, for whose necessity the eviction was sought, had separated from the family after partition and, therefore, the bonafide need of the landlord and family member could not be held to be bonafide need nor the son would fall within the definition of landlord or his family members, therefore, the grounds of eviction established u/s 131(h) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, hereinafter referred to as 'Act of 1950') could not result into eviction decree against the tenant.

6. On the other hand, Mr. Salil Trivedi, learned

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