Krishan Kumar and Another vs Rameshwar Dayal and Others

Mrs. Sabina, J.—Plaintiff- Rameshwar Dayal had filed a suit for recovery of possession of the shop in question as well as the rent and compensation for the use and occupation of the shop. Additional Civil Judge (Sr.Division), Narnaul, vide judgment and decree dated 12.01.2005 decreed the suit of the plaintiff. Aggrieved by the same, defendants preferred an appeal and the same was dismissed by Additional District Judge, Narnaul vide judgment and decree dated 19.01.2009. Hence, the present appeal by the defendants.

The facts of the case as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment read as under:-

The brief case of the plaintiff is that he constructed the shop in dispute in the year 1988 and let out to Geegraj father of the defendants in March, 1992 at a rental rate of Rs.500/- per month. Geegraj died in August 2000 and after his death the defendants are in possession of the shop is dispute being his legal heirs. Geegraj was not a good tenant. He was not paying rent regularly. His behaviour was not good and rent from 01.05.2000 was due against him. The defendants have also not paid rent of the shop in dispute w.e.f. 01.05.2000. The shop in dispute is situated in village Nangal Chaudhary and does not fall in notified area, municipal committee or municipal council. Therefore, provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (in short referred as the Rent Act) are not applicable on the shop in dispute. The plaintiff several times asked the defendants to vacate the shop in dispute and hand over its possession to him. But to no effect. Therefore, the plaintiff terminated tenancy of the defendants through registered legal notice u/s 106 of the Transfer of Property Act (hereinafter referred as the TPA Act) sent through his counsel w.e.f 22.11.2000. But even after receipt of the notice, the defendants failed to pay arrears of rent and hand over vacant possession of the shop in dispute. Hence, the suit for the recovery of arrears of rent, use and occupation of the shop in dispute and possession thereof.

Defendants No.1 to 3 filed joint written statement while contesting the suit and asserted that the plaintiff is not owner of the shop in dispute. The shop in dispute was not constructed in the year 1988. Whereas their father Geegraj was a tenant over the shop in dispute since 1982 and after his death they are in possession of the shop in dispute as tenants. They are running business of cloth merchant in the shop in dispute. The shop in dispute was let out in the year 1982 on rent of Rs.100/- per month which was later on enhanced to Rs.150/- per month, Rs.200/- per month and lastly Rs.250/- per month. They have already paid rent up to 31.11.2000 and rent thereafter has been tendered in the court. They further asserted that the plaintiff is retired Government employee. He has only one son. He is also Government employee. The plaintiff has two brothers. They got allotted three plots from Gram Panchayat village Nangal Chaudhary by misrepresentation in illegal manner and raised constructed thereon. They have violated terms and conditions of the allotment, therefore, the plot underneath the shop in dispute has been reverted back to Gram Panchayat village Nangal Chaudhary. The plaintiff has not right, title or interest in the shop is dispute. They also took legal objections of locus-standi, maintainability, non-joinder and mis-joinder of parties and the civil court has no jurisdiction to entertain and try the suit. All other allegations of the plaint have been vehemently denied and prayed for dismissal of the suit.

On the pleadings of the parties, trial court framed the following issues:-

(1) Whether the plaintiff is owner in possession of the suit property? OPP

(2) Whether the plaintiff is entitled for the relief claimed in the suit? OPD

(3) Whether the plaintiff has no locus standi to file the suit? OPD

(4) Whether the suit is not maintainable in the present form? OPD

(5) Whether the plaintiff is estopped to file the suit by his own act and conduct? OPD

(6) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD

(7) Whether the civil court has no jurisdiction to try the present suit? OPD

(8) Whether the suit is false, frivolous and vexatious and defendants are entitled to special costs? OPD

(9) Relief

After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed.

Plaintiff- Rameshwar Dayal had filed a suit for recovery of possession of the shop in question as well as the rent and compensation for the use and occupation of the shop.

The learned trial court vide its judgment and decree dated 12.01.2005 has held that the rate of rent in question was Rs.250/- P.M.. Against the said part of the judgment, plaintiff had filed an appeal and the same was also dismissed by the learned Additional District Judge, Narnaul along with the appeal filed by the defendant. So far as the present appeal is concerned, it has been filed by defendants No.1 and 2 challenging the judgment and decree of the courts below whereby the suit of the plaintiff for possession of the shop in question, along with the compensation for use and occupation of the building at the rate of Rs.250/- P.M. was decreed.

The case of the plaintiff is that the shop in dispute was let out by him to Geegraj in the year 1988. Admittedly, the shop in dispute is situated in village Nangal Chaudhary, which is neither notified area nor under the Municipal Committee or Municipal Council and hence, the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable. Plaintiff served a notice u/s 106 of the Transfer of Property Act, (hereinafter referred to as "T.P.Act") regarding termination of tenancy. The notice which was sent by the plaintiff was proved on record as Ex.PW2/A and acknowledgment and receipt were proved on record as Exs.P1 to P9. The receipt of notice was not disputed by the defendants. The case of the defendants is that the tenancy in question, could not be terminated by serving a notice u/s 106 of the T.P.Act.

The arguments raised by the learned counsel for the appellant that the lease of the shop in dispute was for an unlimited period, cannot be accepted as in the absence of any supporting evidence in this regard.

In these circumstances, courts below have rightly held that the tenancy can be terminated by the plaintiff by serving notice u/s 106 of the T.P.Act. No interference by this court is called for.

No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed.