S.N. Modi, J.
1. This is an appeal by the defendant-tenant against the judgment of the District Judge, Kota, dated November 18, 1972 in a suit for ejectment.
2. The eviction of the defendant-appellant from the f tilt premises was sought on the ground of his having constructed his own house in the same city. The issue that was tried was 'whether the defendant had constructed his own house in Kota and in this way the defendant is in possession of a vacant house for residential purpose and on this ground, the plaintiff U entitled to eject the defendant.' It is not in dispute that the defendant bad taken a loan from the Government under the Law Income Group Housing Scheme and constructed a house in Bhimganj Mandi, Kota. It was found by the appellate court that the defendant had constructed the new house and he had also resided in that house for some time. It was further found by the appellate court that after some time, the newly constructed house was let out to one Malhotra for Rs. 270/- per month. The appellate court also relied upon the statement of DW. 2 Sushil Kumar, who had stated that the newly constructed house by the defendant was a suitable house for residential purposes. It is also not in dispute that the suit for eviction was instituted against the defendant on January 30, 1970 and the newly constructed house was sold by the defendant on February 1, 1971.
3. Section 13(1)(i) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, runs as follows,-
13. Eviction of tenants. - (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied-
(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or
It is abundantly clear from Section 13(1)(i) that if the tenant has built a suitable house, no protection can be granted to him from eviction und r the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. It is submitted by the earned Counsel for the defendant (bat the house constructed by the defendant was not suitable for his residence. Whether the house was suitable for the residence on the defendant is a question of fact. The lower appellate court has found on the basis of the evidence of DW 2 Suahil Kumar that the house constructed by the defendant was suitable for his residence; I am therefore not inclined to disturb the finding of the lower appellate court.
4. The next contention of the earned Counsel for the defendant is that since the house constructed by the defendant was sold during the pendency of the suit, the case does not fall within the ambit of Section 13(1)(i), and the defendant can still claim the protection under Section 13 of the Act. This very point was raised before Hon'ble Kan Singh, J. in Dr. Rajeshwar Dayal v. Oban Kuaar 1973 WLN 278 Dealing with this question Hon'ble Kan Singh, J. observed.
The next question is whether the sale of the house by the defendant during the pendency of the suit entitles him to claim the protection of Section 13 of the Act. It has to be borne in mind that the act of alienation of the house was a voluntary act of the defendant. Once the liability for eviction has arisen under Section 13 of the Acton account of the tenant having built a house then the right to sue for eviction has accrued to the landlord and that right could be taken away only by an express provision of the statute or by necessary intendment. Section 13 does not lay down as to what would happen if the tenant has once built a suitable residence and has then disposed it of during the pendency of the suit. Therefore, the section cannot be resorted to for divesting the right of seeking an eviction which has accrued to the landlord.
With reject, I entirely agree with the above proposition laid down by Han'ble Kan Singh, J. The learned District judge, in the circumstances, Tightly decreed the suit.
5. There is no force in this appeal and it is dismissed with costs.