Honble JAIN, J.–Heard learned counsel for the parties.

(2). The defendant-tenant has preferred this second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 16th of May, 2005 passed by the Additional District Judge No. 4, Jaipur City, Jaipur, in Civil Appeal No. 2/2004, whereby the appeal filed by the plaintiff-landlord was allowed in respect of the disputed portion of the house of the plaintiff-landlord, which was not rented out vide rent-note, but it was trespassed illegally by the defendant-tenant.

(3). Briefly stated the facts of the second appeal are that the plaintiff-landlord filed a suit for eviction of the defendant- tenant from the rented premises, arrears of rent and for possession of the disputed portion of the house, against the defendant-tenant in the lower Court. It was pleaded that the plaintiff No. 1 is the owner of Plot No. A-11, Niram Marg, Sikar House Colony, Jaipur. The defendant-tenant took on rent one room on the first floor of the plot with facility of latrine at the rate of Rs. 250/- per month, and executed a rent-note in favour of the plaintiff No. 1 landlord. It was further pleaded in the plaint that on 10.5.1989, when the plaintiffs had gone to attend some programme at the residence of his brother Ramesh Chand, the defendant No. 1 tenant with the help of defendant No. 2 illegally occupied other rooms of Plot No. A-11 on ground floor as well as in the underground, the details of which were mentioned in the plaint, by getting the benefit of their absence. It was also pleaded that the defendant-tenant has committed a default in making the payment of rent and the plaintiffs are in need of rented premises reasonably and bona-fide, therefore, it was prayed that the suit of eviction in respect of the rented premises and of possession in respect of other portion of the house illegally occupied by the defendant-tenant, be decreed with mesne profit. The plaint was contested by the defendants. The lower Court framed 12 issues. Issue No. 3 was as to whether the defendant took forcefully the possession of the property as mentioned in para 3 of the plaint on 29th of May, 1989 and the plaintiff-landlord is entitled to get a decree of mesne profit at the rate of Rs. 1300/- per month. Issue No. 7 was whether the plaintiffs are entitled to a decree of possession in respect of portion of the property as mentioned in Para 3 of the plaint. Issue No. 2 was in respect of default in making the payment of rent. Issue No. 4 was in respect of personal bona-fide necessity of the plaintiff of the rented premises. Issues in respect of comparative hardship and partial eviction were also framed.

(4). Both the parties led their evidence. Learned lower court decided Issue No. 2 relating to default in making the payment of rent and Issue No. 4 relating to personal bona-fide need of the plaintiff in respect of rented premises, against the defendants. Consequently the lower Court passed a decree of eviction in respect of rented premises covered by rent-note Exhibit-1, as described in Para 1 of the plaint. Being aggrieved with the same, the plaintiffs filed first appeal before the first appellate Court challenging the finding of the lower Court in respect of Issues No. 3 and 7. The first appellate Court, vide its impugned dated 16.5.2005, decided both the Issues No. 3 and 7 in favour of the plaintiffs and against the defendants and allowed the appeal of the plaintiffs and passed a decree in their favour in respect of the portion of the property as described in Para 3 of the plaint, which was illegally occupied by the tenant. Hence, this second appeal has been preferred on behalf of the defendant- tenant.

(5). Learned counsel for the defendant-appellants, Shri J.P. Goyal, contended that this was a suit for eviction against the defendant-appellants wherein a decree of eviction can only be passed in respect of the rented premises and not in respect of the property allegedly occupied by the defendant-

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