Dr. Vineet Kothari, J.@mdash1. The appellants/defendants, who are the legal representatives of original tenant, Sh. Rameshwar Lal, have filed the present second appeal under Section 100 of CPC, 1908, having concurrently lost the legal battle before the courts below, assailing the judgment and decree dated 10.12.1999 passed by learned Additional District Judge No. 2, Ajmer, in Civil Regular Appeal No. 47/1980 - Rameshwar Lal (D) through LR''s v. Radheyshyam & Ors., whereby the learned first appellate court has dismissed the appeal filed by the appellant/defendants while affirming the judgment and eviction decree dated 04.09.1980 passed by learned Munsif (East), Ajmer, in Civil Original Suit No. 364/1976- Radheyshyam v. Rameshwarlal, whereby the suit filed by the original plaintiff, Sh. Radheyshyam, for eviction of the original defendant/tenant, Rameshwarlal, who is now represented by his legal representatives, from the suit shop, situated at Naya Bazar, Ward No. 13, Ajmer, was decreed.
2. The original plaintiff/landlord, late Sh. Radheyshyam, filed suit for eviction on 21.10.1976 on ground of second default in payment of rent. Although, earlier suit filed by the plaintiff was dismissed while giving benefit to the tenant of first default in payment of rent.
3. The relevant findings on various issues recorded by the learned trial court in its judgment dated 04.09.1980 are quoted herein below for ready reference:--
4. The appellants/defendants, being aggrieved by the eviction decree, preferred first appeal before the learned first appellate court, which also came to be dismissed by the learned first appellate court below while affirming the judgment of learned trial court vide its judgment dated 10.12.1999. The relevant findings of the first appellate court below are quoted as under:--
5. While admitting the present second appeal of the appellants/defendants vide order dated 07.03.2000, a coordinate bench of this Court, framed the following substantial question of law which is quoted herein below:--
"Whether the decision rendered in case of Govind Narayan v. Bodh Raj & Ors. (1998 RLR (1) 316) being in conflict of decisions rendered by co-ordinate benches reported in 1995 RLW (1) 14, 1995 DNJ 563, 1994 (2) RLR 123, 1996 RLW (1) 691 and 1999 WLC (UC) 58 required reconsideration?"
6. Mr. M.M. Ranjan, Sr. Advocate, assisted by Mr. Kapil Manoj Charna, learned counsel appearing on behalf of appellants/defendants/tenant urged that both the courts below have seriously served in deciding the Issue No. 4 with regard to the status of present appellant, Smt. Kishan Jot, to claim benefit of Section 3 (vii) (b) of the Rajasthan Rent Control Act, 1950 as during the regular course of business of the original tenant, Sh. Rameshwarlal, the wife of defendant/tenant, Smt. Kishan Jot, the present appellant was actively participating in the business activities with her husband, and therefore, after the death of original tenant, Sh. Rameshwarlal, the present appellant, Smt. Kishan Jot is entitled to remain in the possession of the suit shop in question as the statutory tenant. He, therefore, argued that the question of law framed above, deserves to be answered in favour of appellants/defendant.
7. On the other hand, Mr. Alok Trivedi, learned counsel for the respondents/plaintiffs urged that judgments and decrees passed by the courts below are based on findings of fact and, therefore, the same deserves to be upheld by this Court while answering the substantial question of law in favour of plaintiffs/landlord. He further argued that even in the statements recorded on oath before the courts below, the defendant, Smt. Kishan Jot, or her son Kailash, who was in Bank service elsewhere, failed to establish that during the lifetime of her husband, they were actively participating in the business of goldsmith in the suit shop in question.
8. I have heard the learned counsel for the parties at length and perused the record.
9. In the considered opinion of this Court, the present second appeal filed by the appellant defendants, Smt. Kishan Jot and her son Kailsh Chandra, deserves dismissal. The reasons are as follows.
10. The defendants, even though wife and son of the original tenant, Rameshwarlal, could not inherit the tenancy of his son and could not get the benefit under Section 3 (vii) (b) of the Act of 1950 as they failed to lead any evidence before the court below for establishing that they were ordinarily carrying on the business with the original tenant, Rameshwarlal in the suit shop in question prior to his death on 09.12.1989. The evidence on the other hand is on the contrary that the defendant, Smt. Kishan Jot, has failed to establish that during the lifetime of her husband, she or her son Kailash, who was in Bank service, had actively worked in the suit shop. Merely, being a family member, even though being Class-I heir as per personal law, namely, Hindu Succession Act, it would not be sufficient to confer upon him the status of a "statutory tenant" in terms of Section 3 (vii) (b) of the said Act, unless the fact of her ordinarily carrying on business with the tenant is also established. Being a relative entitled to succeed to the deceased tenant''s property according to personal law, and ordinarily carrying on the business with him, are the twin conditions required to be satisfied and even if one of them is absent, the foundation of claiming relationship of statutory tenant under the said provisions falls to the ground. This is what the view which was taken by this Court in the case of Gopi Kishan v. Bajrang Lal & Anr. reported in 1996 (1) RLW 690. The relevant Para Nos. 25 to 27 of the said judgment are quoted herein below for ready reference:--
"25. Although Smt. Suraj Devi is heir of deceased Rampratap but indisputably since she was not carrying on business with her deceased husband Rampratap, therefore, she fulfills only one condition and other condition is lacking hence she is not necessary party in the present suit and the plaintiff appellant is fully justified not to implead her.
26. As regards the claim of the defendant respondents of being tenant of the shop in question they have proved only one condition about carrying on business with deceased Rampratap without disclosing their capacity whether as a servant or as a partner. But they miserably failed to establish themselves as heirs of deceased, therefore, they are not entitled to claim themselves to be the tenant of the shop in question.
27. In my humble opinion for impleadment as party in a suit under Act No. 17 of 1950 and for acquiring status of tenant under Sec. 3 (vii) (b) of the said Act, both the conditions precedent required to coexist. If any one of them is missing then no one can claim either to be impleaded as a party or claim himself to be the tenant of the shop in question."
11. Section 3 (vii) (b) of the Act of 1950 is also quoted herein below for ready reference:--
"Section 3 (vii) (b): in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises purposes, ordinarily carrying on business with him in such premises as member of his family upto his death".
12. In the case of LR''s of Tribhuvan Dutt v. Jai Narayan reported in (2009) 4 RLW 3364 (Raj.) this Court held as under:--
"In view of aforesaid decision of this Court following the Supreme Court decisions, the contentions of learned counsel for the appellant that the Full Bench decision of this Court in case of Ram Jeevani [1991 (1) RLW 222] still holds the field and deserves to be followed cannot be sustained. The said judgment being in conflict with the later decision of the Supreme Court in the case of Tara Chand v. Ram Prasad [, (1990) 3 SCC 526] stands impliedly overruled and this has already been said by coordinate bench of this Court in case of Chiman Lal v. Narendra Kumar [(1995) 2 RLW (Raj) 415]. Thus, it is very clear that though tenancy rights are heritable, in order to fall within the definition of tenant the legal representative in the matter is governed by the Rent Control Act, 1950, which is a special law and the legal representative of the deceased tenant has to fulfill the conditions and requirements of Section 3 (vii) (b) of the Rent Control Act, 1950 and unless he or she is carrying on the business with the deceased tenant upto the date of his death, he cannot fall within the definition of tenant under Section 3(vii) (b) of the Act of 1950, therefore, cannot be taken on record to pursue the litigation and claim such heritable rights merely because as per the personal succession laws, he or she would fall within the definition of legal representative under Section 2 (11) CPC."
13. Thus on the basis of entire conspectus of factual and legal matrix, this Court is satisfied that both the learned courts below were perfectly justified in decreeing the suit for eviction filed by the respondents/plaintiffs from the suit shop in question and there is no reason to take a different view of the matter by this Court and, therefore, the present second appeal of the appellants/defendants is liable to be dismissed while answering the substantial question of law framed above, in favour of respondents/plaintiffs/landlord and against the present appellants/defendants.
14. Accordingly, the present second appeal of the appellants/defendants is hereby dismissed. No costs.
15. The appellants/defendants shall hand over the peaceful and vacant possession of the suit shop to the respondents-plaintiffs within a period of two years i.e. on or before 28.02.2018 and shall pay mesne profit @ Rs. 5000/- per month commencing from March, 2016 and will further continue to pay the same mesne profit each month by 15th day of the next succeeding month or in advance to the respondent/plaintiff also and in case there is any default in payment of mesne profit, the period granted for ejectment shall stand reduced and the decree of ejectment would become executable forthwith. The appellants/defendants shall also clear all the arrears of rent and mesne profit and pay the same to the respondents/plaintiffs within three months from today, otherwise the same will bear interest @ 9% per annum. The appellants/defendants shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void and such third party will also bound by this decree. The appellants/defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondents-plaintiffs within two years i.e. on or before 28.02.2018 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and the parties concerned forthwith.
