1 S.B.CIVIL SECOND APPEAL NO.32/2004 Kishan Lal and others. vs. L.Rs. of Narayan. DATE OF JUDGMENT ::: 13.1.2006 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. BR Mehta, for the appellants. Mr. R Charan, for the respondent. - - - - - The appeal of the appellants no.1 and 2 has been dismissed by the order of this Court dated 10.2.2004, hence, the appeal filed by the appellant no.3 alone survives. Heard learned counsel for the parties. Following substantial question of law is involved in this appeal :- “Whether the courts below could have passed the decree against the defendants no.1 and 2 for obtaining the possession from the defendant no.3 to hand over the possession of rented premises to the plaintiff or could have decreed only the decree for symbolic possession against the appellant no.3 ?” 2 At the request of learned counsel for the parties, both the counsels were heard on merits. Learned counsel for the appellant submitted that the appellant no.3 is tenant in the suit property and in the suit for specific performance of contract, decree for eviction of tenant cannot be passed. A tenant cannot be evicted unless he incurs any disqualification to hold the property as tenant and a decree is passed by the competent court of law for his eviction under any law and particularly, at present under Rajasthan Rent Control Act, 2001 and before that under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It is also submitted that it is settled law that in a case for decree of possession against the title holder/landlord of the tenant, only decree for symbolic possession can be passed and not of actual physical possession. Learned counsel for the respondent also submitted that the appellant no.3 can only be evicted by following process of law. For this, he has no dispute but so far as direction to the appellants no.1 and 2 is concerned, that could have been issued by the civil court directing them to obtain the possession of the suit property and the appellants no.1 and 2 may take legal course open to them to evict the tenant. I considered the submissions of learned counsel for the 3 parties. A tenant can be evicted by the landlord by following procedure of law for which this Court need not to elaborate in a suit for specific performance of contract in which decree for actual possession against the owner of the property can be passed but where the tenant is in occupation, then the court could have passed the decree of symbolic possession with respect to the property which is in possession of the tenant. The trial court also could not have passed the decree against the defendants no.1 and 2 to evict the defendant no.3 because of the simple reason that unless and until the grounds exist for eviction of tenant, the landlord cannot be asked to evict the tenant. In a suit for specific performance of contract, the courts below could not have decided whether there exists any ground for eviction of the tenant or not. Otherwise also, in a suit for specific performance of contract, after purchase of the property, the purchaser steps in the shoe of the landlord and he can evict the tenant. In view of the above, this appeal is partly allowed and the decree so far as direction to the appellants no.1 and 2 to evict the appellant no.3 from the suit property is concerned, is set aside and it is ordered that the respondents, legal representatives of the plaintiff, shall be entitled to take symbolic possession from the appellant no.3 in place of actual physical possession. However, it is made clear that if any party has any right to evict the tenant in accordance with law, then the 4 party shall be free to evict the tenant only by following process of law. (PRAKASH TATIA), J. S.Phophaliya