JUDGMENT : 1. The present appeal arises out of a judgment and decree dated 30.10.1996 passed by learned Additional District Judge No. 1, Bikaner in Civil Appeal No. 56/85, whereby the judgment and decree dated 2.5.1981 passed by learned Munsiff, Bikaner in civil original suit No. 523/72, between Ram Ratan and Lal Chand, has been reversed. 2. It is borne out from the record that respondent-plaintiff Ram Ratan filed a suit for recovery of arrears of rent and ejectment about the disputed shop, situated in Kot Gate, Bikaner, against the defendant-Lal Chand, with the allegation that he is a landlord and decreed-defendant Lal Chand was a tenant at monthly rent of Rs. 60/-. It was averred in the plaint that the plaintiff-Ram Ratan has purchased the shop in question from Prabhu Lal on 7.6.1971. It is further averred that Prabhu Lal also handed over the disputed shop to the plaintiff through 'Bakhshish-nama'. The ejectment from the disputed shop was sought on the ground of reasonable and bona fide necessity as well as on the ground that tenant has become defaulter. 3. The trial Court dismissed the suit on 2.5.1981 holding that there is no reasonable and bona fide necessity to the plaintiff-respondent. It was also held by the learned trial Court that entire rent has been paid or deposited and as such the decree for ejectment on the ground of default cannot be passed. 4. Aggrieved against the judgment and decree of learned trial Court, an appeal was filed by plaintiff-respondent before the learned District Judge, which was transferred to the Court of learned Additional District Judge No. 1, Bikaner, for disposal in accordance with law. 5. Indisputably, during the pendency of appeal, the tenant-Lal Chand died on 24.10.1993 whereupon an application for bringing the legal representatives of the deceased defendant-tenant on record was filed and the appellants were brought on record as legal representatives of deceased Lal Chand. 6. A dispute was raised by the plaintiff-respondent before the first appellate Court that on account of death of tenant-Lal Chand, the right of tenancy has come to an end and it does not devolve upon his legal representatives. 6. A dispute was raised by the plaintiff-respondent before the first appellate Court that on account of death of tenant-Lal Chand, the right of tenancy has come to an end and it does not devolve upon his legal representatives. It appears on the record that an objection was filed on behalf of Smt. Kailashi Devi widow of Bhanwar Lal pre-deceased son of Lal Chand that due to death of his son Bhanwar Lal deceased Lal Chand suffered depression and used to remain sick. Due to illness, he was not able to sit on the shop and her mother-in-law namely Bhajni Devi being an old lady was unable to transact business on the shop, therefore, her servant Tek Chand used to help Lal Chand and she also used to look after the business of the shop in the evening and sit there for some time. In her reply widow Smt. Kailashi Devi further stated that during the life-time of Shri Lal Chand, she used to look after the business of the shop and used to carry on business in the shop, therefore, she has become statutory tenant of the shop within the meaning of Section 3(vii)(b) of the Rajasthan Premges (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as Act No. 17 of 1950). It was categorically stated by her that Shri Kailash Kumar, appellant No. 2 is a Government servant and Smt. Bhajni Devi being an old woman never carried on business in the disputed shop during the life time of deceased Lal Chand as his family member. 7. On the aforesaid objection and counter-objection taken by the appellants and respondent, learned first appellate Court without making any hearing which means examination of oral evidence, including cross-examination, adducing documentary evidence by one party and opportunity of rebuttal by other and without hearing the respective arguments on merit in the light of evidence regarding accrual of statutory right of tenancy within the meaning of Section 3(vii)(b) of the Act No. 17 of 1950 came to the conclusion that since there is dispute between the legal representatives of deceased tenant Lal Chand hence right to statutory tenancy does not survive to any of them. 8. It is held by learned first appellate Court that it is not clear from the material on record that who after the death of tenant Lal Chand carried on business in the disputed shop. 8. It is held by learned first appellate Court that it is not clear from the material on record that who after the death of tenant Lal Chand carried on business in the disputed shop. The aforesaid approach of learned first appellate Court is against the statutory provisions envisaged under section 3(vii)(b) of the Act No. 17 of 1950. The learned first appellate Court ignored the terms "ordinarily carrying on business with him in such premises as member of his family upto his death" used under the aforesaid Section of Act No. 17 of 1950. 9. It is also evident from perusal of judgment given by learned first appellate Court that without analytical discussion with regard to accrual of statutory tenancy right over the disputed shop it came to the conclusion that the plaintiff-respondent is entitled to obtain a decree for eviction against the legal representatives of deceased tenant, as none of them are found to be statutory tenant. 10. It is to be further noticed that on the aforesaid preliminary issue, the judgment and decree passed by learned trial Court was set aside and appeal was allowed without setting aside the findings recorded by the trial Court on the question of reasonable and bona fide necessity as well as default in payment of rent. 11. I have heard learned counsel for the parties and perused the judgment under appeal given by the learned first appellate Court. 12. Suffice it to say in this appeal that learned first appellate Court has committed substantial error of law and procedure in deciding the controversy between the parties regarding accrual of statutory tenancy right within the meaning of Section 3(vii)(b) of the Act of 1950 and as such, the judgment and decree passed by the first appellate Court deserves to be set aside. 13. The aforesaid question came up for consideration before me in case of Chiman Lal v. Narendra Kumar, wherein paragraphs 16 & 17 it was held, which reads thus : "16. The term "ordinarily carrying on business with him in such premises as members of his family upto his death" makes it clear that protection of Section 3(vii)(b) of the Act No. 17 of 1950 is extended to only those heirs and legal representatives of deceased-tenant who continued to do business alongwith the tenant upto his death. The term "ordinarily carrying on business with him in such premises as members of his family upto his death" makes it clear that protection of Section 3(vii)(b) of the Act No. 17 of 1950 is extended to only those heirs and legal representatives of deceased-tenant who continued to do business alongwith the tenant upto his death. The person who carried on business with the tenant till his death only be treated as tenant under the Amended Act No. 14 of 1950. If the heirs and legal representatives of deceased-tenant Mangi Lal were not carrying on business along with the deceased-tenant at the time of his death, they would not be treated as tenant under the aforesaid Act. All heirs and legal representatives of deceased will not become ipso facto statutory tenants under the Act. In fact, only those heirs and legal representatives who are members of the family plus who carried on business with the original tenant upto his death are entitled to get benefit of Section 3(vii)(b) of the Act. Subsequently, carrying on business after death of original tenant in the premises will not make such heirs and legal representative as tenant under the Act. 17. In my humble opinion, if the premises, which is subject matter of disputed tenancy in a suit is not found in the enjoyment of the original tenant at the time of his death in the state of joint-ness with his heirs and legal representatives, death of the original tenant results in folding of the protective umbrella contemplated under section 3(vii)(b) of the Act of 1950 and after death of the tenant his heirs and legal representatives would not be entitled to the protection referred in the aforesaid section." 14. Looking to the totality of facts and circumstances of the present case, I am of the view that after setting aside the judgment and decree passed by learned first appellate Court the case deserves to be remanded to it for decision afresh, with a direction to decide the issue : Whether on the date of death of the tenant Lal Chand, the heirs and legal representatives of deceased-tenant were ordinarily carrying on business with him in the disputed shop as members of his family? If the learned first appellate Court arrives at the conclusion with regard to aforesaid issue in affirmative then it would be required to examine the findings recorded by the learned trial Court relating to reasonable and bona fide necessity as well as default in payment of rent. However, if the aforesaid issue is answered in negative by the first appellate Court then it would not be required to examine the findings records by the learned trial Court relating to reasonable and bona fide necessity as well as default in payment of rent but it would decide the appeal in the light of decision given by this Court in case of Chiman Lal (supra).Resultantly, the judgment and decree dated 30.10.1996 passed by first appellate Court is hereby set aside and present appeal is allowed. The case is remanded to first appellate Court, to try the issue framed in the body of the judgment, with a direction to re-admit the appeal to its,original number and decide it afresh, in accordance with law.Both the parties are directed to bear their own costs.Before parting with the judgment, it would be pertinent to observe that the suit for eviction is pending consideration for 25 years. Therefore, learned first appellate Court will decide the appeal afresh preferably within six months from the date of receipt of certified copy of this judgment.Learned counsel for the parties are directed to ensure presence of appellants as well as respondent before the first appellate Court on 5.1.1998, on which date the first appellate Court would fix the date for oral and documentary evidence on the issue framed by this Court hereinabove.Office is directed to remit back the record of the Court-below forthwithAppeal Allowed.