The ground for eviction under Section 11(h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, is where the premises is required for the personal necessity of the landlord himself or such person for whose benefit the premises is held. This ground perishes with the death of the landlord, and the legal representatives of the deceased landlord cannot continue ejectment proceedings based on the personal necessity of the deceased landlord.

1. A suit for ejectment of the defendant-appellant from he suit shop situate at Udhampur was brought by three persons namely S/Shri Om Kant, Suraj Parkash and Ram Rattan. The principal ground on which the ejectment of the defendant-appellant was sought was that the suit shop was required for the personal necessity of Om Kant to whose share the shop had fallen in a family partition. The suit was dismissed by the Earned Sub-judge, Udhampur, on 22-11-1975 but the decree and judgment of the learned Sub judge was set aside in appeal by the learned District Judge, Udhampur, on 1-5-1976. Aggrieved against the decree of reversal, the defendant-appellant filed the civil second appeal which is the subject matter of decision by this court. During the pendency of the appeal in this Court, Shri Om Kant died and his legal representatives were brought on the record.

2. Mr. R. P. Bakshi. learned counsel for the defendant-appellant appearing in support of the civil second appeal, has submitted that since the sole ground for ejectment of the appellant was that the suit shop was required by Om Kant for his personal necessity and since Shri Om Kant had died, the ground of personal necessity had perished with him and as such, it is contended, the appeal be allowed and the suit filed against the appellant be dismissed. It is maintained that the premises in dispute was a commercial shop and the ground for eviction was that Om Kant needed the same to start his own Karyana shop and, therefore, on his death that ground was no longer available. Mr. Bakshi urges that the position in case of a residential house would be different as the family members might be allowed to say that since they were living with the landlord before his death, his personal necessity included their personal necessity, also. No other ground has been urged by Mr. R. P. Bakshi in support of the civil second appeal.

3. Mr. T. S. Thakur, learned counsel for the legal representatives of Shri Om Kant and the other respondents, has contended that the ground of eviction was also available to the heirs of Om Kant as they would have continued with the running of the shop after Om Kant and that since a decree for possession had been passed in favour of Om Kant, the landlord, the decree could be defended by his legal representatives for the benefit of his estate and that the decree was not liable to be upset only on the ground that the landlord for whose personal necessity the order was passed, had died. It is urged that the benefit by way of a decree is an incorporeal right and that right having vested in Om Kant, in that a decree for eviction having been passed against the appellant, the legal representatives of Om Kant cannot be divested of that benefit on the death of Om Kant.

4. Mr. Thakur has, in support of his submissions, placed strong reliance on Smt. Phool Rani and others versus Sh. Naubat Rai Ahuwalia (AIR 1973 SC 2110). In that case the plaintiff, in a Rent Act application against his tenant, sought possession of certain premises on the ground of personal requirement but died during the pendency of the appeal before the Appellate Authority. The legal representatives of the deceased made an application for being brought on record of the appeal and that application was opposed by the tenant. The Appellate Authority, however, allowed the legal representatives to be brought on the record. The contention of the tenant that the right to sue (including the right to continue the appeal) did not survive to the heirs of the plaintiff, was negatived by the appellate authority. In an appeal before the High Court at Delhi, their Lordships of the Delhi High Court took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground the application for ejectment was dismissed, leaving it open to the heirs to bring fresh proceedings founded on their own requirements. The correctness of that decision was challenged by the plaintiffs heirs in the appeal before the

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