JUDGMENT :

1. Appellant-defendant-tenant (hereinafter referred as ‘tenant’) has preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 30.07.2001 passed in Civil Regular appeal No.109/1996 by the Additional District Judge No.2, Jaipur District, Jaipur affirming the judgment and decree for rent and eviction dated 26.07.1988 passed in Civil Suit No.69/1981 by the Additional Civil Judge and Additional Chief Judicial Magistrate No.1, Jaipur District, Jaipur whereby and whereunder the civil suit, for rent and eviction filed by the respondents-plaintiffs-landlords (hereinafter referred as ‘landlords’) in relation to the two rented shops situated at Kotputli, District Jaipur, was decreed and while declaring the tenant as defaulter in payment of rent, decree for eviction has been passed on the grounds of subletting, material alterations and substantial damages.

2. The relevant facts as culled out from the record are that the rented properties are two shops situated at National Highway No.8, Kotputli, Jaipur which were let out to tenant in the year 1978 @ Rs.400/-per month rent through rent note dated 17.11.1978. The landlords instituted a suit for rent and eviction on 22.07.1981, invoking the provisions of Section 13 of the Rajasthan Premise (Control of rent and Eviction) Act, 1950 (hereinafter referred as “the Act of 1950”), alleging inter alia (i) tenant has not paid rent after 17.08.1980 and committed default for more than six months (ii) tenant has caused willful substantial damages to the rented premise (iii) material alterations have been caused to the rented premise (iv) tenant has sublet the rented premise and has created nuisance. After filing the suit, the plaint was got amended by adding paragraph No.5 ¼d½ alleging some additional substantial damages and material alterations by the tenant to the rented premise during course of the suit. The tenant submitted written statement admitting his tenancy through rent note and denied all the grounds of eviction. The trial court settled issues and recorded evidence of both parties. After hearing both parties and on appreciation of pleadings and evidence, the trial court has observed that the tenant has committed default in payment of rent, however, benefit of first default was extended to him. Further, the trial court has observed that defendant has caused willful substantial damages and material alterations to the rented premise as also the tenant has sublet the rented premise to one Gopal. The allegations of nuisance were not found proved. Finally, the trial court, vide judgment and decree dated 26.07.1988 passed decree for eviction on three grounds of willful substantial damages, material alteration and subletting as provided under Sections 13(1)(b), 13(1)(c) and 13(1)(e) of the Act of 1950.

3. The tenant challenged the decree for eviction by way of filling first appeal.

The first appellate court, after re-appreciation of evidence, affirmed the fact findings recorded by the trial court and affirmed the decree for eviction vide judgment and decree dated 30.07.2001.

4. Hence feeling aggrieved by the concurrent findings of fact, tenant has preferred this second appeal.

This second appeal was filed way back on 07.09.2001. This Court, while admitting this second appeal for hearing vide order dated 09.10.2001, framed following substantial questions of law:-

(I) Whether the finding recorded by the Courts below on the question of sub-letting can be held to have been legally proved in absence of any ingredient regarding relationship of landlod and tenant between the defendant-appellant and his brother?

(II) Whether the plea of parting of possession can be permitted to be raised by the respondent-landlord in absence of pleading to that effect in the plaint and also in absence of any issue having been framed by the Courts below since such pleadings was not existing in the plaint.

(III) Whether the decree for eviction passed by the two courts below even if