Munnalal And Ors vs Heeralal And Ors

Appellant-defendant has preferred this second appeal to challenge judgment dated 24th of May, 2017, passed by Addl.

District Judge, Merta (for short, 'lower appellate Court'), whereby learned lower appellate Court has affirmed judgment and decree dated 29th of August, 2012, passed by Addl. Civil Judge (Junior Division), Merta (for short, 'learned trial Court'), decreeing the suit of respondent-plaintiff for eviction and mesne profits.

The facts, in brief, are that respondent-plaintiff instituted a civil suit for aforementioned reliefs with specific averment that before institution of the suit, a notice under Section 106 of the Transfer of Property Act, 1882 (for short, 'T.P. Act') was given to the tenants, but the premises were not vacated, therefore, they are entitled for vacant possession of property and mesne profits for use and occupation from the date of termination of tenancy. In the notice under Section 106 of the T.P. Act, besides non-payment of rent by appellant-tenants, they were castigated for material alteration in the premises without permission of the landlord. The suit was decreed by learned trial Court.

Feeling aggrieved by judgment and decree of learned trial Court, appellants preferred first appeal before learned lower appellate Court and the learned lower appellate Court, upon examining the matter de-novo and appreciation of evidence, fully concurred with the findings and conclusion of the learned trial Court, therefore, essentially the instant appeal is against the concurrent finding of fact recorded by both the Courts below.

I have heard learned counsel for the parties and perused the impugned judgment.

Although, learned counsel for the appellants has taken shelter of Section 114 of the T.P. Act, but, I am afraid, this ambitious argument of the appellants is not tenable precisely for the reason that there is nothing on record to show that on their behalf requisite compliance of the provision was made during trial. That apart, the respondent-landlord has also taken shelter of ground about making material alterations in the rented premises without permission of the landlord. Essentially, when the tenancy is governed by common law of T.P. Act, the tenant is not entitled for any specific defence, which is available to a tenant under the Rent Control Act. The only defence available to the tenant in the instant case is the validity of notice under Section 106 of T.P. Act. The validity of notice under Section 106 of the T.P. Act has not been infirmed by both the Courts below. The said finding of the learned Courts below is based on sound appreciation of evidence.

In totality, I am unable to see any question of law involved in this appeal much less substantial question of law.

During the course of hearing, learned counsel appearing for respondent-landlord has also submitted that the decree passed by learned trial Court and affirmed by learned lower appellate Court was put to execution by the landlord and pursuant thereto appellants have already handed over possession of the rented premises on 22nd of May, 2019. In proof thereof, certified copy of warrant of possession containing following recitals is also produced by the learned counsel for the respondent:

"मेने मेरी दुकान का कब्जा प्राप्त कर लिया है। व दुकान मुन्नालाल का कोई सामान मोजुद नहीं है।"

Although learned counsel appearing for the respondent, Mr. Sanjay Nahar has submitted that the decree to the extent of mesne profits is yet not executed but has frankly conceded that the respondent-landlord volunteers to forgo arrears of mesne profits. He further submits that the decree passed by the learned trial Court and affirmed by the learned lower appellate Court may be treated as fully satisfied in the wake of delivery of possession of rented premises. Learned counsel Mr. Nahar has also assured that execution of the decree to the extent of recovery of mesne profits shall not be pressed by the landlord before learned executing Court.

In view thereof, I find no reason to interfere with the impugned judgments of learned Courts below.

Accordingly, the instant second appeal is dismissed, subject to the observations made supra.