KANHAIYA SINGH SANTOK SINGH Vs. KARTAR SINGH

JUDGEMENT

(1.) THIS second appeal under Section 100 CPC has been filed against the judgment and decree dated 5.10.2002 passed by Additional District Judge, Kishangarh (Ajmer) in Civil Regular Appeal No. 47/1997 whereby the appellate court has reversed the decree of the trial court dated 30.7.97 passed by Additional Civil Judge (J.D.), Kishangarh and decreed the plaintiff's suit for eviction.

(2.) DURING appeal Santok Singh, the original tenant has died and vide order dated 10.1.2008, the appeal stands abated and dismissed, against which the appellants approached to the Apex Court and the Apex Court vide judgment dated 4.3.2009 in Civil Appeal No. 1525/2009 has ordered that the High Court should direct the learned trial Court to take evidence as regards to the fact whether present appellants who are sons of Santok Singh were ordinarily carrying on business in the premises at the time of death and trial Court should decide the issue as per provisions of O.22 R. 5 CPC. In compliance of the order, the court below has conducted the enquiry. Land Lord respondent has examined himself as PW/1, PW/2 Devraj, PW/3 Manvendra Singh, and PW/4 Shyamsunder Vaishnav whereas tenant appellants have examined D.W./1 Surendra Kumar, D.W./2 Jawant Singh and Manmohan Singh D.W./3 and after the enquiry, the court below was of the opinion that son of Santok Singh; Jaswant Singh and Man Mohan Singh were not the tenant as per the definition of Section 3 sub -clause (vii) of the Rajasthan (Rent Control and Eviction) Act, 1950 as they were not carrying on the business with his deceased father at the time of his death, objections has been filed by the appellants.

(3.) D .W./2 Jawant Singh and Manmohan Singh D.W./3 has stated that in the life time of his father, they were ordinarily doing the business with him but to utter surprise to this Court, in spite of this contention that from 1981, they were doing the business with his father, no documentary evidence has been produced by which it could be shown that they are participating in the business; no bill book, no returns, no vouchers of purchase or sell of goods have been placed on record and apart from this, it also came on record that family is having one petrol pump at Jaipur Road and another at Industrial Area. The court below was conscious of the fact that it is not the domain of the enquiry that whether the sons of the tenant are having any other business or not but fact that they are having other independent business negatives the fact that they are ordinarily carrying the business with the deceased father.