JUDGMENT 1. - This is first appeal filed by defendants against judgment and decree dated 14.10.1996 passed by learned Additional District Judge No.3, Jaipur City, Jaipur, in Civil Suit No.423/1995, whereby learned trial court decreed the plaintiff's suit for eviction. This appeal was admitted to hearing on 23.11.1998 and interim order was also passed. 2. Though the matter has come up for orders on an application filed by plaintiff-respondent for award of mesne profit but, on request of learned counsel for both the parties and keeping in view of the fact that plaintiff-respondent Nirmaldas is a senior citizen aged about 85 years, appeal has been heard finally. 3. Plaintiff filed a suit for eviction against defendant for eviction on the ground of sub-letting, non-user of the shop and default in payment of rent, for which issues no.1, 2 and 6 were framed respectively. Learned trial court decided the issue no.1 regarding sub-letting in favour of plaintiff and against defendants. Issue no.2 regarding non-user of shop for last eight months from the date of filing of the suit was also decided in favour of plaintiff and against defendant. Remaining issues No.3 to 6 including the issue no.6 regarding default were decided in favour of the plaintiff. The suit was decreed in favour of plaintiff and against defendant. Defendant was directed to pay to plaintiff rent at the rate of Rs. 300/- per month from 21.01.1985. Hence this regular first appeal on behalf of defendant. 4. Shri R.K. Agarwal, learned Senior Counsel appearing on behalf defendant-appellants, has argued that the suit was originally filed against Shyamdas and Mohanlal and, on death of Shyamdas, his son Gagandas substituted him as defendant. Plaintiff did not at all prove the sub-letting of the shop in dispute. In this connection learned Senior Counsel referred to statement of plaintiff Nirmaldas (PW-1), who, in his evidence, stated that he came to know from his neighbours that defendant no.1 has sublet his shop to defendant no.2 on receiving a sum of Rs. 20,000/- as pagri (royalty), and that this part of statement of PW-1 is nothing but hear-say, which is not admissible in evidence, This witness, in his statement, has neither named any such neighbour nor was any such neighbour produced in evidence. Learned senior counsel argued that a partnership firm was formed with tenant and one Mohanlal, respectively, with 30% and 70% shares. Learned senior counsel argued that a partnership firm was formed with tenant and one Mohanlal, respectively, with 30% and 70% shares. Partnership deed (Exhibit A-1) was also produced on record of the trial court. This partnership firm was formed even before the death of original tenant Shyamdas, who died on 15.10.1987. When specific query was put to PW-1 Nirmaldas in his cross-examination, he failed to deny that their existed a partnership firm between them. In this connection, learned senior counsel also referred to statements of Danumal (DW-4) and Manakchand (DW-6), who also proved existence of partnership firm. The learned trial court has been unduly influenced by the fact that the account books of the partnership firm were not produced. The firm was doing a minor work of cycle repairs with a very small income. The fact that record of the accounts were not produced could not therefore be blown out of proportion to hold it to be a case of sub-letting.Shri R.K. Agarwal, learned Senior Counsel for defendant-appellant, on the question of non-user, argued that plaintiff Nirmaldas (PW-1) in his examination in chief, has stated that the shop was lying closed for last about three years whereas the suit was filed by the plaintiff on 16.05.1993 and statement of the plaintiff was recorded on 12.07.1991 which was more than three and half years after the date of filing of the suit. It was argued that factum of sub-letting could not be proved unless it was proved to the satisfaction of the trial court that there was transfer of legal possession of the suit property by the tenant in favour of third party from whom he used to receive the rent and burden of proof in this respect was entirely on the plaintiff. Sub-letting could not be taken as proved on the basis of mere fact that account books of partnership firm were not produced. Also the mere fact that defendants in their originally filed written statement did not plead the factum of partnership firm, by itself could not be a reason to suspect genuineness of the plea. Original defendant had taken the suit shop on rent from the plaintiff immediately after his retirement therefore, his bona-fides could not be doubted. Also the mere fact that defendants in their originally filed written statement did not plead the factum of partnership firm, by itself could not be a reason to suspect genuineness of the plea. Original defendant had taken the suit shop on rent from the plaintiff immediately after his retirement therefore, his bona-fides could not be doubted. After his death, his son Gagandas substituted him as legal representative, who was examined as DW-1, but his statement could not be completed because original partnership deed was not produced on record. However on 21.05.1996 an application was filed by defendant no.1 with a request to permit completion of his statement, but the trial court without deciding said application, decreed the suit which caused him prejudice. Regarding this, plaintiff had come with different pleas at different stages of the proceedings. The suit premises were not lying unused for a period of eight months preceding the date of filing of the suit. On the question of non-user, the learned trial court failed to appreciate that this plea has to be examined and understood in true perspective. It was plaintiff who was required to prove that the suit premises were lying unused for a period of six months from the date of filing of the suit or that the premise had not been used for a long period. All these basic ingredients were not found proved. The issue of non-user under Section 13(1)(j) of the Rajasthan Rent Control Act, was not proved. Learned senior counsel argued that two grounds, namely, sub-letting and non-user cannot be raised simultaneously as they are anti-thesis to each other. It was argued that minor contradictions in the statements of witnesses about the partnership firm are inconsequential. Even if within partnership deed is ignored, it can still be taken as a firm because even an oral partnership is accepted in law. It is therefore prayed that the appeal be allowed and judgment passed by trial court be set aside and suit filed by plaintiff-respondent be dismissed. 5. Per contra, Shri M.M. Ranjan, learned senior counsel, appearing for plaintiff-respondent argued that both the grounds of eviction, namely, sub-letting and non-user of the suit premise were fully proved by evidence. Learned trial court has in its considered and comprehensive judgment thoroughly examined those issues, which does not suffer from factual or legal error. 5. Per contra, Shri M.M. Ranjan, learned senior counsel, appearing for plaintiff-respondent argued that both the grounds of eviction, namely, sub-letting and non-user of the suit premise were fully proved by evidence. Learned trial court has in its considered and comprehensive judgment thoroughly examined those issues, which does not suffer from factual or legal error. Learned senior counsel, argued that the partnership deed, which was prepared in October, 1983, becomes highly doubtful because in the written statement there was no mention of any such partnership in the written statement filed on 27.07.1989. In clause no.7 of the partnership deed, which was prepared in English language, it was mentioned that the account books of the firm would be maintained by mercantile fashion, which shall be open for inspection to partners and their representative at any time and shall be closed every year. When, however, a specific query was put to DW-2 Mohanlal, to whom shop in dispute was sublet, he, in his cross-examination, though admitted his signature on the partnership deed, but stated that they have not maintained the account books of the firm for last ten years or more. DW-5 Dharamdas, who was also produced by defendant to prove the partnership firm, has also made same statement. In his statement before the court he stated that the partnership deed was executed 23.10.1993, however, subsequently an application was moved on 16.09.1994 stating that correct date of execution was 13.10.1983. The application was rejected by the trial court on the premise that it was filed two months after the date of statement, which was recorded on 26.07.1994. It was very much delayed. The application was filed on 16.09.1994 whereas the statement of this witness Dharamdas was recorded on 26.07.1994 and the statement was read over to the witness, who accepted the same to be correct and made his signatures. There is another significant contradiction in the statement of DW-2, which renders his testimony completely unreliable which is that he stated that business of the partnership firm was started in October, 1983 whereas in the self same statement he stated that the partnership deed was prepared in May, 1984 whereas the date of the partnership deed that was produced was 13.10.1983 at Exhibit-A1. 6. 6. On the question of sub-letting Shri M.M. Ranjan, learned senior counsel, argued that plaintiff Nirmaldas (PW-1) in his statement before the court, even went on to say that the shop in question was lying closed for last ten to twelve years. There was no concrete or contemporaneous evidence produced by the defendant to show that the business was in fact being run from the shop in question for last more than six months preceding the date of filing the suit. The plaintiff had discharged his initial onus and thereafter it was for the defendant to prove that business was being run from the disputed shop for last more than six months. No such evidence in rebuttal was produced by defendants therefore on the question of sub-letting the suit has rightly been decided in favour of the plaintiff. Learned senior counsel has argued that the defendant no.1 Gagandas (DW-1) is a Government servant and so far no partnership deed has been executed between Mohanlal and Gagandas. Original partnership deed that was prepared was between the plaintiff Nirmaldas and original defendant Shyamdas, father of defendant no.1 Gagandas. In clause 8 of the partnership-deed it has been clearly stipulated that on account of death or discontinuance of any of the partners, new partner could be inducted. However, no such new partner deed has been prepared nor Gagandas (DW-1) has been made a partner of the firm. Even otherwise he could not be made a partner because he is a Government servant. It is therefore prayed that the appeal be dismissed. 7. I have given my anxious and thoughtful consideration to rival submissions and minutely scanned the evidence on record. 8. Even though it is a first appeal in which this court is entitled to re-appreciate the evidence and find out whether the trial court has correctly analyzed the evidence on record so as to reach such findings or whether the findings are perverse or otherwise unsustainable in the eyes of law. However, in this case learned trial court has, on thorough examination of the evidence, discovered that preparation of partnership deed was only sham affair and in fact there did not exist any partnership deed. However, in this case learned trial court has, on thorough examination of the evidence, discovered that preparation of partnership deed was only sham affair and in fact there did not exist any partnership deed. There were lot of contradictions in the evidence of the defendants about existence of partnership deed, the time when the partnership firm was started and when such partnership deed was executed and even after the death of the original tenant Shyamdas, was any new deed of partnership was ever executed. Those facts have been noted by the learned trial court in minute details. The written statement was filed on 27.07.1989 and there was no mention whatsoever about this so called partnership deed. Subsequently when partnership deed was produced on record, it was shown to have been executed on 13.10.1983. Though Shri R.K. Agarwal, learned senior counsel appearing for the defendant-appellant, has argued that there can be oral partnership also therefore it is not necessary that partnership deed should be registered. However, this argument may not be valid in a case where the partnership deed has actually been prepared and produced in defence of the argument of sub-letting. In clause 7 of the partnership-deed (Exhibit-A1), it is mentioned that account books of the firm shall be prepared on regular basis and would be available for examination to any of the partners and such accounts shall be closed every year. But none of the account books relating to any of the years was produced. In fact, Mohanlal (DW-2) in his statement has categorically admitted that they have not prepared any account books of the partnership firm for last more than a decade. No other bills or any other contemporaneous document has been produced to show if at all business of partnership firm was carried out. Despite clause 8 in the partnership deed that on retirement or death of any partner, another partner would be inducted, no such new partnership-deed has been prepared and brought on record inducting that now defendant-Gagandas, son of original tenant Shyamdas, who has stepped in his shoes as partner. Therefore, if now Mohanlal alone is running the business, it cannot be said to be business of partnership firm, which by itself proves the sub-letting. This partnership deed was not presented for registration before the Sub Registrar but merely attested by the notary public but the attesting Notary Public was not produced in evidence. Therefore, if now Mohanlal alone is running the business, it cannot be said to be business of partnership firm, which by itself proves the sub-letting. This partnership deed was not presented for registration before the Sub Registrar but merely attested by the notary public but the attesting Notary Public was not produced in evidence. Statement of defendant no.1 Gagandas has not been read in evidence whereas the statement of DW-2 Mohanlal does not inspire any confidence for all the aforesaid reasons. In fact, defendant Mohanlal, in his written statement, stated that though the business of partnership firm was settled in October, 1983 but the partnership deed was prepared in May, 1984 whereas the date indicated in the partnership deed is 13.10.1983. Sub-letting was thus clearly proved and rightly, in my view, it is not open for interference by this court. 9. In the light of the discussion made above and the view that I have taken of the matter on issue no.1, the argument on issue no.2 need not be examined in great detail but even then this is proved by evidence on record that so called shop in question was lying closed for more than six months before the date of filing of the suit, which fact was proved by the plaintiff in his statement whereas the statement of defendant no.1 which was original tenant, was not read in evidence. 10. In view of the above, I do not find any merit in this appeal, which is accordingly dismissed. 11. Since the appeal has been dismissed, therefore the application filed for mesne profit need not be decided on merits. The same is disposed of accordingly.Appeal dismissed. *******