LODHA, J.—This is a defendant-tenants second appeal arising out of a suit for ejectment from a shop situated in Nala Bazar, Ajmer.

2. The plaintiff claimed ejectment on three grounds, namely:—

(i) That the defendant has erected a wooden cabin on the chabutra adjacent to the shop leased out to defendant without the permission of landlord*

(ii) That the shop is required reasonably and bonafide for the personal necessity of the plaintiff for opening a passage to her residence up stairs and:

(iii) That the defendant has sublet the shop. The defendant denied all the above mentioned three allegations.

3. After recording the evidence produced by the parties the learned Munsiff, Ajmer dismissed the plaintiffs suit. On appeal by the plaintiff the learned Addl. Civil Judge,Ajmer held that the plaintiff had failed to prove bonafide and reasonable necessity for the shop in question. He also held that the cabin constructed by the defendant did not materially alter the premises. But on the question of subletting he found that the defendant had parted with possession of a part of the leased shop and was consequently liable to be ejected. In this view of the matter the learned Additional Civil Judge set aside the judgment and decree by the trial court and decreed the plaintiffs suit for ejectment. Consequently, the defendant has come in second appeal.

4. Learned counsel for the appellant has urged that the finding of the lower court that the defendant parted with possession of the leased premises without the permission of the landlord is erroneous. It is submitted that Mohan to whom possession of a part of the leased premises is alleged to have been given is defendants nephew and has been living in commonality with the defendant. The learned counsel for the respondent, however, tried to justify the decree of the lower appellate court not only on the ground decided in his favour by it, but also on the other two grounds decided against him. It has therefore become necessary to deal with all the three grounds relied upon by the plaintiff in the plaint.

5. I would first take up the question whether the plaintiff has succeeded in proving that the defendant has sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord as contemplated by sec 13(l)(c) of the Rajasthan Premises (Control of Bent and Eviction) Act, 1950? In this connection it may be stated at the very outset that the name of the person to whom the shop is said to have been sublet was not mentioned in the plaint, and the defendant simply denied the allegation of subletting in his written statement. However, in the better particulars supplied by the plaintiff the name of the alleged tenant was disclosed as Mohan. In her statement as P. W. 1 Smt. Govindi Bai has expressed complete ignorance as to the relationship of Mohan with the defendant. She is also not in a position to state whether Mohan lives in commonality with the defendant. On the other hand, the defendant Madhavlal in his statement as D. W. 1 has deposed that Mohan is his nephew and is joint in food and business with him, and that he had put up a betel shop for Mohan in a cabin which he had constructed on the Thala, that is. a raised platform adjacent to the shop which had been leased out to the defendant along with the main shop. This statement of the defendant has been corroborated by his witness D.W. 4 Asandas, who has also a shop in front of the suit shop. In face of this uncontroverted evidence led by the defendant, it must be accepted that Mohan was not a sub-tenant of the defendant and that he had not parted with the possession of the whole or any part of the shop in question. The learned Additional Civil Judge has recorded a finding against the defendant on the ground that the defendant had not produced his account books to show that the investment for the betel shop was made by him or the joint Hindu family funds were utilised for the purpose of starting a be

Click Here to Read the rest of this document