Bhagwan Das and Others vs Leela Ram and Others

Dr. Vineet Kothari, J.

This second appeal filed by the plaintiff-landlord is arising out of the judgment and decree dated 17.12.2005 by the learned District Judge, Pali in Civil First Appeal No. 91/2005 "Leela Ram Vs. LRs of Govind Ram" who allowed the appeal filed by the appellant-defendant-tenant and reversed the judgment and eviction decree dated 20.09.2005 passed by the learned Civil Judge (Junior Division), Marwar Junction, Pali in Civil Original Suit No. 16/1998 "LRs of Govind Ram Vs. Leela Ram" by which, the learned Civil Judge (Junior Division) had decreed the suit filed by the plaintiffs-LRs of Govind Ram seeking eviction of the defendant-tenant and for recovery of rent due in relation to the dispute of suit shop situated near Dak Bungalow, Bus Stand, Marwar Junction.

The present second appeal has been filed by the appellants-plaintiff-landlord, who are the legal representatives of the Govind Ram Sindhi before the learned Trial Court below, against the reversal of the findings of the learned Trial Court by the learned First Appellate Court.

The tenancy was created in favour of the defendant-tenant Leela Ram S/o Lekhumal Sindhi on 20.02.1996 on the monthly rent of Rs. 200/- per month in respect of the suit shop No. 2, Near Dak Bungalow, Bus Stand, Marwar Junction. The tenancy of the suit shop was terminated by the landlord-plaintiffs by serving a notice dated 23.12.1997 under Section 106 of the Transfer of Property Act and thereafter, the present suit was filed in the Trial Court on 23.03.1998 namely, Suit No. 16/1998 "LRs of Govind Ram S/o Chhangan Mal Sindhi Vs. Leela Ram S/o Lekhu Mal Sindhi". The suit was decreed by the learned Trial Court on 20.09.2005 with the following findings returned in favour of the plaintiffs-landlord:-

The first appeal (No. Civil Appeal Decree No. 91/2005) filed by the defendant-tenant-lessee, however, came to be allowed by the learned First Appellate Court on 17.12.2005 with the following findings returned in favour of the defendant-tenant-lessee:-

Being aggrieved by the judgment and decree dated 17.12.2005 passed by the learned First Appellate Court by which the findings of the learned Trial Court were reversed and the plaintiffs were directed to hand over the possession of the suit shop back to the defendant-lessee, the present second appeal has been filed by the plaintiffs in this Court on 22.12.2005 which was admitted for consideration on 04.01.2006, while framing the following substantial question of law:-

"Whether the appellant/plaintiff validly terminated the tenancy of the respondent/tenant and the appellate court erred in holding that the notice served by the appellant is invalid?"

The learned Senior Advocate Mr. R.K. Thanvi along with Mr. Narendra Thanvi appearing for the appellants-landlord urged that the controversy at hands is squarely covered by the judgment in the case of Rishabhwadi Jain Shwetamber Murti Pujak Trust Vs. Mahaveer reported in 2012 CJ (Rent Control) 215. The relevant portion of the aforesaid judgment is quoted herein below for ready reference:-

"7. In view of the aforesaid quoted provisions and in view of the findings of both the courts below that the receipt of Notice Ex. 3 was admitted by the defendant - tenant, the same cannot be held to be invalid for the reasons of it being sent for a shorter period or the notice containing stipulating for rent due for a shorter period. All notices which have been issued in pursuance of which any suit or proceedings is pending at the commencement of the said Act, which in present case was so pending, have to be governed by the Amended provisions as per Section 3 of the Transitory provisions contained in the Amending Act No. 3 of 2002. In para 20 of the impugned judgment, the learned appellate court itself has noticed that the defendant had admitted having received the said notice, terminating the lease under Section 106(3) of the Act.

In view of the said admission, the question of burden and the discharge thereof by the plaintiff, becomes irrelevant and in view of the admitted receipt of the notice, the lease stood terminated and thereafter the status of the lessee becomes that of a trespasser.

In view of this, the learned appellate court has erred in reversing the finding of the learned trial court and allowing the appeal of the defendant-lessee.

Consequently, the present second appeal of plaintiff is allowed and the substantial question of law framed above is answered in favour of the appellant-plaintiff and against the defendant-tenant (lessee)".

Mr. R.K. Thanvi, the learned Senior Advocate submitted that the notice under Section 106 of the Transfer of Property Act which was duly served on the defendant-lessee cannot be invalidated only on the ground that it was issued for a shorter period. The learned counsel submitted that the suit in question was filed by the plaintiffs after a lapse of more than one month after serving of the aforesaid notice and, therefore, the lease-tenancy was validly terminated and after such date, the status of the lessee in the suit shop is that of a trespasser and, therefore, the learned Trial Court has rightly decreed the suit of the plaintiffs but the learned First Appellate Court has wrongly reversed the findings of the learned Trial Court. The learned counsel further submitted that the possession of the suit shop was taken in the execution proceedings on 09.11.2005 during the pendency of the first appeal but the learned First Appellate directed handing over back the possession of the suit shop by the plaintiffs to the defendant but in view of the interim order dated 04.01.2006 passed by this Court, while admitting the present second appeal, the possession of the suit shop is still with the plaintiffs-lessor only.

The learned counsel Mr. Salil Trivedi on behalf of Mr. Sajjan Singh appearing for the defendant-lessee, however, tried to defend the first appellate court''s order on the ground that the lessor had given the notice under Section 106 of the Transfer of Property Act for a very short period and, therefore, the notice served on the defendant could not be held valid. However, the learned counsel could not controvert the law laid down in the case of Court Rishabhwadi Jain Shwetamber Murti Pujak Trust Vs. Mahaveer (supra).

Having considered the submissions of the learned counsels and having perused the material placed on record and perusal of this Court, this Court is satisfied that the controversy involved in the present matter is no-longer res integra and the present second appeal filed by the plaintiffs deserves to be allowed and the substantial question of law deserves to be answered in favour of the plaintiffs. The impugned judgment and decree of the learned First Appellate Court dated 17.12.2005 deserves to be set aside and the judgment and decree dated 20.09.2005 deserves restored back in favour of the plaintiffs.

Accordingly and in view of the above, the present second appeal filed by the plaintiffs-Bhagwan Das S/o late Govind Ram Sindhi and Ors. is allowed. No costs. The judgment and decree dated 17.12.2005 is set aside and the judgment and the eviction decree dated 20.09.2005 is restored back. No orders as to costs. Since the possession of the suit shop is with the plaintiffs only in pursuance of the interim order dated 04.01.2006, there is no need to pass any eviction decree now. A copy of this judgment be sent to both the Courts below and to both the parties concerned forthwith.