JUDGMENT 1. - Aggrieved of the judgment and decree dated 10.5.2003 passed by the learned Addl. District and Sessions Judge (Fast Track) No. 2, Jodhpur, the defendant - appellant has approached this Court by filing the present First Appeal under Section 96 of the Civil Procedure Code. 2. The learned Trial Court by its order decreed the suit against defendant- appellant to the effect : (1) Plaintiff has the right to get vacant and actual peaceful possession of the two shops in questions, the details of which has been described in Para No. 1 of the plaint. Two months' time is allowed for the purpose and after that the plaintiff shall have the right to get the possession of the suit shops through Court. (2) Plaintiff is entitled to receive due rent Rs. 29,445/- from the defendant. (3) Plaintiff shall be entitled to get Rs. 2,265/- per month as mesne profits for use and occupation till getting possession of the disputed shops from defendant No. 1 but she will have to pay additional Court fees on this amount. (4) That the plaintiff is entitled to get the expenses of suit from defendant No. 1. 3. The plaintiff, who filed the suit before District Judge, Jodhpur on 29.10.1993 for arrears of rent and eviction against defendant, after detailing location of the suit property, inter alia, stated that the disputed shop Nos. 2 and 3 were taken on rent by the defendant from Mr. Keshav Singh Sankhala at the monthly rent of Rs. 2,265/- excluding electricity charges and house-tax and he agreed to pay the rent amount month by month. Earlier two receipts were used to be issued for these two shops but by consent of the parties, the wall in between these two shops was removed and it became one unit. It was further stated that the earlier owner of these two rented shop Nos. 2 & 3 sold these two shops to the plaintiff for a consideration of 1,60,000/- on 2.9.1992 through a registered sale-deed, handed over the legal ownership to her and the seller gave information of sale of these shops to the defendant by his letter dated 28.10. 1992 sent through Registered A.O. and asked him to pay rent to the plaintiff from the date of sale. 1992 sent through Registered A.O. and asked him to pay rent to the plaintiff from the date of sale. Plaintiff also sent a notice on 3.11.1992 through her advocate mentioning about purchase of the suit property and asked for payment of rent to her. Although the defendant received both the notices but he neither replied to the notices nor paid the rent, however by the information to defendant the relationship of landlady and tenant came into existence in between the plaintiff and the defendant. 4. The grounds for eviction taken by the plaintiff state that despite information to the defendant about purchase of the suit property by the plaintiff and demanding the rent, the defendant neither paid nor offered her the due rent from 2.9.1992 and became defaulter so was liable to be evicted. It was also claimed that the plaintiff needed the disputed shops bonafidely and reasonably for her handicapped son Dharmendra Kachhawaha, who was having no source of income, to get him engaged in dairy business and other items such as biscuits, cold drinks, eggs etc. In other grounds for eviction, the plaintiff has taken the ground of comparative hardship and stated that by a decree of partial eviction the purpose will not be served as the business of dairy will require big space for cold storage, chilling plant, bottle cooler, fridge and other things. Plaint also averred that in the vicinity of suit shops so many shops are available and in Sardarpura and Chopasani Road area so many commercial complexes have been constructed where number of shops are vacant and the defendant can run his business by taking other shop on rent. Further, the plaint of the plaintiff states that the defendant was asked to vacate the shops and to pay the due rent so many times but he did not agree to it then a notice was sent through Advocate on 24.08. 1993 asking for handing over vacant possession of the disputed shops and the due rent within 30 days from the receipt of notice but the defendant despite receiving notice neither handed over vacant possession of the shops nor replied to the notice. The plaint further averred that the rent became due for the period from 2.9.1992 to 1.10.1993 for 13 months amounting to Rs. 29,445/- and on this basis also recovery and eviction was claimed. 5. The plaint further averred that the rent became due for the period from 2.9.1992 to 1.10.1993 for 13 months amounting to Rs. 29,445/- and on this basis also recovery and eviction was claimed. 5. As against this, the case of defendant No. 1 in the written statement was that the shop Nos. 2 & 3 were taken on rent from Mr. Keshav Singh, defendant No. 2 @ Rs. 2,265/- per month which included the electricity charges and the house-tax etc. and further the ownership of the shops of the plaintiff on the basis of sale deed was required to be proved. In the last of Para 2 of written statement, it has been stated that plaintiff is landlord and he is tenant. He denied attornment between him and the plaintiff as landlord and tenant and stated that if the plaintiff proves the purchase of suit property in her favour he would not deny her as landlady. It is further stated that he had been paying the rent regularly to the landlord Keshav Singh Sankhla and the plaintiff never demanded rent from him. He stated that he was ready to tender the rent and therefore was not a defaulter. The grounds of bonafide necessity and comparative hardships of the plaintiff were denied so also the other averments and prayed for dismissal of the suit stating that the plaintiff has filed the suit in order to harass illegally and to increase the rent. 6. Defendant No. 2 is Mr. Keshav Singh Solanki. He was made party on an application moved under Order 1 Rule 10 C.P.C. It has been inter alia stated in his written statement that he never sold the disputed property to the appellant-plaintiff. He has also stated that his signatures on the sale-deed were obtained by the plaintiff in collusion with her husband. He prayed that the suit be dismissed:- 7. On the basis of pleadings of the parties, the issues, which the learned Trial Court has framed, are as follows:- (1) Whether the plaintiff has got the legal ownership of the two shops, described in Para No. 1 of the plaint, through registered sale-deed dated 2.9.1992 from Keshav Singh and information to this effect has been given by the plaintiff and Keshav Singh to the defendant and in this way there has been relationship of shop owner and tenant between the plaintiff and tenant? (2) Whether the defendant has defaulted in payment of rent by not paying the rent from 2.9.1992? (3) Whether the plaintiff has the reasonable and bonafide necessity of the disputed shops for her son Dharmendra? (4) Whether for the business of the defendant another suitable premises are available and in case of not granting decree in favour of plaintiff she will comparatively have more hardship than defendant? (5) Whether the plaintiff is in absolute need of whole premises? (6) Whether the plaintiff till getting possession of the disputed shop is entitled to get Rs. 2,265/- per month from 2.10.1993 as damages for use. (7) Whether the plaintiff has paid less Court fees? (8) Whether no cause of action arose to plaintiff? (9) Relief 8. It has been contended by the learned Counsel for the appellant that the Trial Court has not correctly recorded the findings and the decree of eviction has been passed without there being any proof of attornment. According to the learned Counsel for the appellant no information whatsoever was given by the plaintiff respondent in relation to the purchase of the suit property in the year 1992 and unless this aspect is proved, no decree for eviction could be passed. It has also been submitted that the sale-deed, as required under Section 68 of the Indian Evidence Act, has not been proved, therefore, in the absence of proper evidence brought on record by the plaintiff, the suit was not required to be decreed. It has also been submitted that father of the plaintiff-respondent, who was made defendant in the case, also stated in his statement that infact he never sold the suit property to the plaintiff. According to the learned Counsel, in the above circumstances, the plaintiff had no case whatsoever and the suit was liable to be dismissed. 9. On the other hand, the learned Counsel for the respondent-plaintiff has submitted that the Trial Court has decided Issue Nos. 2, 6 & 7 in favour of the plaintiff-respondent and while recording findings in relation to above issues, it has been established by the evidence led by the plaintiff-respondent that under a valid sale-deed the suit property was purchased by the plaintiff-respondent. It has further been submitted that a tenant cannot challenge the title of landlord and in the rent matters of ejectment, title is not decided. It has further been submitted that a tenant cannot challenge the title of landlord and in the rent matters of ejectment, title is not decided. It has been submitted in the last that in relation to the shops in question, which were rented out to the appellant, notice Ex. 2 and 3 were given and their acknowledgment receipts are available on record, therefore, it cannot be said that there has not been any attornment in the present case. According to the learned Counsel, there is no evidence either documentary or oral led by the defendant-appellant and infact his defence against eviction was struck out. 10. I have considered the above submissions made before me. 11. In the present case, following points require consideration:- (1) Whether intimation was given by the plaintiff-respondent about purchase of the suit shops from her father and notices thereof were sent to the defendant-appellant and further the defendant was also orally informed about the purchase of the suit property by the plaintiff-respondent? (2) Whether the Trial Court has correctly decreed the suit as the defendant- appellant committed default in making payment in relation to the arrears of rent and also subsequently made defaults in making the payment of monthly rent regularly to the plaintiff? (3) Whether any interference is required by this Court in relation to the judgment and decree recorded by the Trial Court for eviction of the defendant-appellant? Points No. 1 and 2: 12. Points No. 1 and 2 are inter-related, as such the same are being disposed of together. 13. It is to be seen that in this case the Trial Court by its order dated 10.5.2003, struck out the defence against eviction under Section 13(5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as 'the Act'). The Trial Court, while recording its finding on Issue Nos. 2, 6 & 7, which were in relation to default committed by the tenant in making any payment of rent due and also not paying rent subsequently and further the entitlement of the plaintiff in relation to receive the rent of shop from 2.10.1993, decided the issues in favour of the plaintiff -respondent. It is significant to mention here that provisional rent in this case was determined on 4.5.1994 under Section 13(3) of the Act. The rent so determined was Rs. 45,300/- and interest thereon was Rs. It is significant to mention here that provisional rent in this case was determined on 4.5.1994 under Section 13(3) of the Act. The rent so determined was Rs. 45,300/- and interest thereon was Rs. 2151.75 as such the total amount determined was Rs. 47,451.75 and it was ordered by the Court on 4.5.1994 that the amount was required to be paid to the plaintiff-respondent within a period of 15 days but the same was not paid as required under Section 13(4) of the Act. The Court further reached to the conclusion that the amount due from July 1996 was also not paid nor deposited in the Bank account of the plaintiff-respondent. While drawing the conclusion, the learned Trial Court stated that admittedly the tenant did not deposit the rent due in time and further from July 1996 to 30.10.1997 and that Sub-section (5) of Section 13 of the Act being mandatory in nature, compliance was must and struck out the defence against eviction. The Trial Court, thereafter, proceeded in the matter to decide the same. It is further relevant to refer hereto a decision in this matter by this Court in S.B. Civil Misc. Appeal No. 36/1999 dated 8.1.2002 where matter regarding abatement of the suit was under consideration as steps were not taken in time to bring the legal heirs on record in relation to defendant No. 2 and this Court set aside the order passed by the Trial Court whereby the suit was dismissed on 15.12.1998 as having been abated. In this case, while the pleadings of the parties were scanned, it was observed by this Court that in view of Para No. 2 of the written statement, the respondent defendant admitted that the plaintiff respondent is landlord, Para No. 2 of the plaint in the written statement was not specifically denied by the appellant-defendant and it was stated that the plaintiff was required to prove the sale-deed. The evidence which has been led in this case may be summarised here. 14. P.W.1 Smt. Laxmi Devi has stated that the disputed property was of her father Shri Kesu Singh Sankhala and before the property was purchased by her, the defendant No. 1 was the tenant in two shops, which subsequently were made as one after removing the Tati and the defendant was paying rent @ Rs. 2,265/- excluding house-tax and electricity charges. P.W.1 Smt. Laxmi Devi has stated that the disputed property was of her father Shri Kesu Singh Sankhala and before the property was purchased by her, the defendant No. 1 was the tenant in two shops, which subsequently were made as one after removing the Tati and the defendant was paying rent @ Rs. 2,265/- excluding house-tax and electricity charges. She has proved Ex.1 the sale-deed, which is registered and has also proved the signatures on the sale-deed of her father which were put in her presence. She has stated that the attesting witness was Dr. Khet Lakhani and she has proved his writing on the sale-deed. She has also stated that after the purchase of property, she and her father both intimated the defendant- appellant about the property being purchased by her. She has proved a notice given by her father to the defendant-appellant Ex.2 and has also stated that notice Ex.3 was also given by her, postal receipt of which she has proved as Ex.4. She has further stated that after giving notice to the defendant tenant, no rent was paid as such a notice was given. She also stated that her father also told the tenant that rent was required to be paid to the plaintiff and the rented shops were required for her son. She further states that for arrears of rent and for eviction, notice Ex.6 was given to the defendant, postal receipt thereof she has proved as Ex.7. In the cross, she has stated that she purchased two shops. In the last of her cross-examination, she has denied the suggestions that actually the shops were not sold to her but infact sale- deed was executed for the purpose so that the shops may be got vacated. A lengthy cross-examination has been addressed to her on all points raised in the written statement but the present matter is required to be looked into in relation to default committed by the tenant and regarding the attornment taking place in the matter or not as other issues were not pressed. 15. P.W. 2 Narain Singh is the husband of plaintiff, who has stated what the plaintiff has stated. He has stated that the disputed shops were purchased by the plaintiff from her father paying consideration for the shops which were on rent with defendant No. 1. 16. 15. P.W. 2 Narain Singh is the husband of plaintiff, who has stated what the plaintiff has stated. He has stated that the disputed shops were purchased by the plaintiff from her father paying consideration for the shops which were on rent with defendant No. 1. 16. In this case, part of the statement of defendant No. 2 was recorded on commission but that did not complete and no cross examination was addressed to him, therefore, the Trial Court has not taken into consideration his statement rightly. 17. Considering the oral statements, coupled with the documentary evidence, it was found by the Trial Court that it was intimated to the defendant-appellant that the suit shops were purchased by the plaintiff-respondent and notice thereof was given and orally also the defendant was informed about the factual position that the plaintiff had purchased the suit shops and became landlord of the shops. The Trial Court further found that there was no material available on record to contradict the oral as well as the documentary evidence brought on record by the plaintiff. Thus, the evidence of plaintiff remained unrebutted and the suit was liable to be decreed. 18. In view of above unrebutted evidence, the contention of the learned Counsel that there has been no attornment in the matter and the judgment and decree awarded by the Trial Court for eviction is not liable to be sustained, is not tenable. It has not been denied that the defendant was a tenant in the suit property but the controversy which has been raised is that infact the plaintiff was not the landlord whereas defendant No. 2 was the landlord. Even this aspect of the matter has not been specifically denied by the appellant-defendant as has been discussed here in above. 19. In the present case, in view of the admitted position with regard to the defendant being tenant and this fact having been proved by the oral evidence that defendant was intimated about true fact that the shops in dispute were purchased by the plaintiff-respondent, it was the duty of the tenant to have tendered the rent or should have deposited the arrears of rent in time after determination of the provisional rent but he failed to do so and, therefore, became liable to be evicted. The Trial Court has considered the relationship of the plaintiff with the defendant as landlord and tenant, however, no challenge has been made to the order passed determining the provisional rent and also to the order whereby it has been held by . The Trial Court that defendant has committed default in payment of rent and compliance of Section 13(4) of the Act was not made by the defendant and his defence was also struck out. 20. In view of above, it appears that the Trial Court has correctly disposed of the issues in relation to passing a decree for eviction on the basis of default. In the present case, issue No. 1 is in relation to the purchase of the suit shops by the plaintiff from her father, which has been proved. The other issues No. 3, 4 & 5 with regard to the shops required for the son of the plaintiff were not pressed, therefore, the same having been decided against the plaintiff, Issue Nos. 7 & 8 were required to be proved by the defendant but he failed to prove the same, therefore, issue Nos. 7 & 8 have been decided against the defendant and in favour of plaintiff. 21. In view of foregoing discussion, answer to points No. 1 & 2 is that information about purchase of the suit shops by the plaintiff-respondent was given verbally as well as through notices Ex.3 and Ex.2 respectively by her and her father to the defendant-appellant and the defendant-appellant also committed default in relation to the making of payment of arrears of rent due as determined by the Trial Court and also defaulted in making regular monthly payment of rent subsequently to the plaintiff.Point No. 3: 22. In view of answer to Points No. 1 & 2, there appears no illegality in the impugned judgment and decree awarded by the Trial Court. 23. Resultantly, I am of the firm view that the Trial Court has correctly appreciated the evidence led in the case and rightly decreed the suit, which requires no interference by this Court. The appeal, being devoid of merit, is required to be dismissed. 24. In the result, the appeal stands dismissed.Appeal dismissed. *******