SBCSA NO.80/2008–MEWA RAM V/S KALYAN MAL AND ORS. : JUDGMENT DTD. .15.10.2008 1/4 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.80/2008 Mewa Ram alias Maga Ram versus Kalyanmal and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.T.S. Champawat, for the appellants. Mr.Sajjan Singh, for the respondents. DATE OF JUDGMENT : 15th October, 2008. JUDGMENT 1. Heard the learned counsel for the parties. 2. This second appeal is directed against the judgment and decree of the first appellate Court dtd.5.1.2008 whereby the first appellate Court reversing the judgment of the learned trial Court granted the decree of eviction in favour of the plaintiff – respondent Kalyan Mal S/O Ram Lal who is now represented by his LRs. The learned appellate Court has granted the decree of eviction of the suit premises i.e. a shop situated at factory area, Bhopalganj, Bhilwara. The eviction has been granted by the appellate Court on the ground of SBCSA NO.80/2008–MEWA RAM V/S KALYAN MAL AND ORS. : JUDGMENT DTD. .15.10.2008 2/4 default, subletting and bonafide necessity of the respondents – plaintiffs. 3. Mr. T.S. Champawat, learned counsel appearing for the appellant vehemently submitted that there was no default on the part of the appellants – defendants to pay rent and arrears of rent and therefore, the learned appellate Court was not justified in reversing the findings of the learned trial Court on this ground. He also submitted that there was no subletting also proved by the plaintiff – respondent and as a matter of fact, the appellant – defendant was impleaded as defendant later on upon his purchase of said premises from another co-defendant with the consent of the plaintiff – respondent and in place of shop of M/s Saraswati Music Centre being run by the predecessor, he was carrying on the business in the name and style of M/s R.K Shoes Company. He also disputed the bonafide necessity of the respondent - plaintiff in view of death of son of plaintiff Mr. Sanwar Lal for whose need the shop in question was required. 4. The learned counsel for the respondents Mr. Sajjan Singh vehemently opposed these submissions that no substantial question of law arises in the present second appeal and even though there was reversal of findings by the first appellate Court, the learned first appellate Court has given detailed and cogent findings referring to the relevant evidence and such independent findings of the learned SBCSA NO.80/2008–MEWA RAM V/S KALYAN MAL AND ORS. : JUDGMENT DTD. .15.10.2008 3/4 appellate Court cannot be said to be perverse in any manner and thus, the findings of facts do not give rise to any substantial question of law to be determined by this Court in second appeal. 5. I have heard the learned counsel and perused the record of the case. In the opinion of this Court, the findings of the learned first appellate Court are based on relevant evidence and there is no misreading of evidence and the findings in question cannot be said to be perverse in any manner. The findings of fact by the learned first appellate Court on the issue of bonafide necessity, default and subletting has been proved by the plaintiffs – respondents and this Court does not find any substantial question of law to be arising requiring determination under Section 100 CP.C. The death of son for whose need the shop in question was claimed does not vanish the bonafide need of the landlord and the said shop in question could be used for any other heir of the respondent – plaintiff. It also appears to this Court that in the present case, there has been a series of subletting of shop in question and the present defendant appears to have stepped into the shoe of another subletee. The learned appellate Court has given detailed findings in this regard while deciding issueNo.2 regarding subletting. 6. Therefore, this Court does not find any force in the present second appeal and the same is accordingly dismissed. The appellants – defendants shall hand over the vacant and peaceful possession SBCSA NO.80/2008–MEWA RAM V/S KALYAN MAL AND ORS. : JUDGMENT DTD. .15.10.2008 4/4 possession of the shop in question to the respondents – plaintiffs within a period of two months from today and shall also pay mesne profit to the respondents – plaintiffs at the rate of Rs.2000/- per month from the month of November, 2008 till actual handing over of vacant possession of shop to the plaintiffs respondents. If the vacant possession is not handed over to the plaintiffs – respondents within a period of two months from today, the plaintiffs – respondents shall not only be entitled to execution of the decree, but shall also be entitled to move this Court by way of contempt petition. The appeal is accordingly dismissed with no order as to costs. (Dr.VINEET KOTHARI)J. Item No.8 Ss/-