R.R Yadav, J.:— This is defendant's second appeal against the judgment and decree dated 22.12.1994 passed by learned Civil Judge (Senior Division) cum-Chief Judicial Magistrate, Nathdwara in Civil Appeal No. 6 of 1993 affirming the judgment and decree of Munsif and Judicial Magistrate, First Class, Nathdwara dated 6.1.92 passed in Civil Original Suit No. 133 of 1979 decreeing the plaintiff's suit for eviction.

2. According to the plaint allegations, the suit-premises was let out to Mangi Lal on 5.8.67 at monthly rent of Rs. 12/-, which was subsequently enhanced to Rs. 15/-. The aforesaid suit was initially filed against the present defendant-appellants and Smt. Bhanwari and Smt. Radha daughters of deceased Mangi Lal on the ground of reasonable and bonafide necessity as well as on the ground of default in payment of rent.

3. During pendency of the suit, on 24.10.80, the plaintiff had withdrawn the suit against Smt. Bhanwari and Smt. Radha, who were arrayed as defendants No. 3 and 4 respectively. The appellants did not raise any objection for withdrawal of the suit against the aforesaid two defendants.

4. The defendant-appellants after service of notices, filed detailed written statement denying the plaint allegations. It is stated by them that the plaintiffs need is neither bonafide nor reasonable. After provisional determination of rent by the learned trial court, the same was deposited by the appellants and they continued to deposit rent month by month as contemplated under sub-sec. (4) of Sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. 17 of 1950).

5. Learned trial court on the basis of the pleadings of the parties, framed necessary issues and after affording an opportunity to the plaintiff as well as defendants to adduce their evidence, recorded a categorical finding that need of the plaintiff is bonafide and reasonable, hence, decreed the suit.

6. Aggrieved against the judgment and decree passed by the learned trial court, the present defendant-appellants filed an appeal before the learned lower appellate court. The learned lower appellate court, after analytical discussion of oral and documentary evidence on record, affirmed the judgment and decree passed by the learned trial court and dismissed the appeal.

7. Against the dismissal of appeal by the learned lower appellate court, the defendant-appellants have filed the instant second appeal before this Court.

8. The instant second appeal was admitted on 5.4.95 by the learned Single Judge of this Court on the following substantial question of law:—

“WHETHER on account of withdrawal of the suit by the plaintiff against defendants No. 3 and 4 in view of the Full Bench judgment of this Court in Ram Jeewani's case, the suit no more remained properly constituted one and was liable to be dismissed.”

9. I have heard Mr. N.P Gupta, learned counsel for the defendant-appellants and learned counsel Mr. Lalit Kawadia, appearing on behalf of the plaintiff-respondent at length.

10. According to learned counsel for the appellants, both the courts-below have erred in holding that since defendants No. 3 and 4 were not carrying business in the shop premises, hence, they are not adversely affected by the decree. In support of his contention, learned counsel for the appellants placed reliance on a Full Bench decision of this Court rendered in the case of Smt. Ram Jeewani v. Smt. Norati Bai (1).

11. Learned counsel Mr. Lalit Kawadia, appearing on behalf of the respondent refuted the aforesaid contention raised by the learned counsel Mr. N.P Gupta appearing on behalf of the appellants and urged before me that withdrawal of suit against defendants No. 3 and 4 namely, Smt. Bhanwari and Smt. Radha by the plaintiff has no bearing on the merit of the case, therefore, both the courts-below have rightly decreed the suit filed by the plaintiff.

12. In support of his contention, learned counsel for the respondent placed reliance on a decision of the Apex Court in the case of Tara Chand v. Ram Prasad (2). I have given my thoughtful consideration to the rival contentions raised at the Bar.

13. In my humble opinion, the first question for consideration in this case would be whether the decision rendered by the Apex Court in Tara Chand's case (supra) is applicable in the present case and in view of the observations of their lordships, the Full Bench decision rendered in the case of Smt. Ram Jeevani (supra) taking a contrary view is no more good law.

14. Indisputably, tenant Mangi Lal in the present case died after definition of “Tenant” as given is Sec. 3(vii)(b) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. 17 of 1950) was amended by Rajasthan Act No. 14 of 1976. The Apex Court while taking note of the Rajasthan Amended Act No. 14 of 1976, ruled thus:—

“A reading of the amendment to the definition of ‘tenant’ in Sec. 3 Sub-clause (VII)(b) makes the Legislative intent manifest that from the date of the Amendment Act came into force on the death of the tenant, his surviving spouse, son, daughter and other heir in accordance with personal law as applicable to him, who had been, in ordinarily residing and, in the case of premises leased out for commercial or business purposes, ordinarily had been carrying on business with him/her in such premises as members of his/her family upto his/her death. Therefore, under the amended definition of tenant, if one seeks to make avail of the benefit of statutory tenancy under the Act, he must establish to the satisfaction of the Court that the surviving spouse, son or daughter and other heir in case of residential purposes, he/she/they ordinarily had been residing in the premises along with the tenant and continued to do till date of death of the tenant. Similarly, in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying on the business during the life time of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant. In other words, to avail of the statutory right under Sec. 3(vii)(b), there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy.”

15. In view of the aforesaid observations of their Lordships of the Supreme Court, in my considered opinion, the full Bench decision rendered in the case of Smt. Ram Jeevani (supra) taking a contrary view does not hold water. Thus, both the courts-below had committed no error in decreeing the suit for eviction filed by the plaintiff.

16. The term “ordinarily carrying on business with him in such premises as member of his family upto his death” makes it clear that protection of Sec. 3(vii)(b) of Act No. 17 of 1950 is extended to only those heirs and legal representatives of deceased-tenant who continued to do business along with 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 tenants under the aforesaid Act. All heirs and legal representatives of deceased-tenant will not become ipso facto statutory tenant 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 Sec. 3(vii)(b) of the Act. Subsequently, carrying on business after death of original tenant in the premises will not make such heir 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 state of jointness with his heirs and legal representatives, death of the original tenant results in folding of the protective umbrella contemplated under Sec. 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.

18. I have critically gone through the judgments rendered by both the courts below and found that both the courts-below have recorded a categorical finding that deceased-tenant Mangi Lal during his life time was not carrying business of washerman in the disputed shop either independently or in state of jointness with any of his heir and legal representatives.

19. In view of the aforesaid concurrent finding of facts recorded by both the courts-below the appellants have been rightly non-suited by both the courts-below and argument of the learned counsel for the appellants to the effect that withdrawal of the suit against defendants No. 3 and 4 by the plaintiff is fatal in the instant case, is devoid of merit. Since neither Mangi Lal at the time of his death was doing business of washerman in the disputed shop independently nor he was doing business of washerman in state of jointness with defendants No. 3 and 4, hence, withdrawal of suit against defendants No. 3 and 4 has no bearing on the merit of the case.

20. Accordingly, the instant Second Appeal is dismissed as no substantial question of law is involved. In the peculiar facts and circumstances of the case, both the parties are directed to bear their own costs.