RAJENDRA PRASAD SHARMA Vs. SMT. BIMLA DEVI

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 21.12.2016 passed by Additional District Judge No. 2, Alwar in Civil Regular Appeal No. 19/2012 whereby the appeal filed by the appellant-defendant was dismissed and judgment and decree dated 22.02.2012 passed by the Additional Civil Judge (Junior Division) & Judicial Magistrate No. 2, Alwar was confirmed.

(2.) Brief facts giving rise to this second appeal are that plaintiff Rameshwar Prasad being Pujari and sole trustee of temple Shri Jagannath Ji situated at Old Katla, Alwar filed a suit for eviction wherein it is stated that two shops were let out to father of the appellant-defendant late Shri Padamchand for residential purposes. The plaintiff filed a suit for eviction on the grounds of reasonable bonafide necessity, substantial damages, nuisance, subletting. It is also stated in the plaint that after the death of Padamchand, the tenancy was automatically terminated and defendant does not have any heritable interest in the rented property but she is the successor of the original tenant, therefore, the suit for eviction has been filed against her. The suit was resisted by the defendant by filing written statement wherein it is stated that late Shri Padamchand and his wife adopted one Shri Rajendra Kumar as son and Rajendra Kumar is living in the rented property, therefore, he is necessary and proper party in the suit. Since he has not been impleaded in the suit, the suit is not maintainable. The other averments made in the plaint have also been denied by the defendant-appellant on the basis of pleadings of the parties. The learned trial court framed necessary issues. Both the parties adduced oral as well as documentary evidence. The learned trial court passed the decree for eviction against the appellant vide its judgment dated 15.03.2005. The First Appellate Court dismissed the appeal vide judgment dated 21.12016. Hence, this second appeal. I have heard learned counsel for the appellant.

(3.) It is contented by the learned counsel for the appellant that the plaintiff himself alleged that there is no relationship of the landlord and tenant between the plaintiff and defendant, therefore, the suit for eviction under the provision of the Rajasthan Premises (Control & Eviction) Act, 1950 (hereinafter referred to as 'the Act of 1950') was not maintainable. It is submitted that it is also alleged by the plaintiff in the plaint that defendant having no heritable interest, therefore, he cannot be termed as tenant under Section 3 (vii)(b) of 'the Act of 1950'. It is submitted that Rajendra Kumar is necessary and proper party in the suit since he was not impleaded by the plaintiff in the suit, therefore, the suit was not maintainable. It is also submitted that when no evidence was produced by the defendant, the averments made in the written statement cannot be considered.