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Imamudeen @ Imam Ali v/s Gokul Chand

    Civil Second Appeal No. 388 of 2011

    Decided On, 26 August 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE KAILASH CHANDRA JOSHI

    For the Appellant: V.K. Sharma, Advocate. For the Respondent: Moti Singh, Advocate.



Judgment Text

Kailash Chandra Joshi, J.

1. Heard learned counsel for the appellant at the admission stage.

2. On behalf of the respondent, Mr. Moti Singh has entered caveat and has put in appearance.

3. This civil second appeal has been filed by the appellant Imamudeen @ Imam Ali against the respondent Gokul Chand, being aggrieved by the impugned judgment and decree dated 30.05.2011, passed by the learned Addl.District Judge, Bhadra, District Hanumangarh, in Civil Regular Appeal No.13/2008 by which the learned first appellate court dismissed the appeal filed by the appellant and affirmed the judgment and decree passed by the learned Civil Judge (Jr. Division), Bhadra dated 24.07.2008, passed in civil original suit No.29/2004 whereby the learned trial court decreed the suit of the plaintiff respondent. 2

4. The short facts giving rise to this appeal are that the respondent-plaintiff filed a suit for eviction and recovery of rent before the learned trial court, against the appellant defendant stating

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therein that the plaintiff has one shop at the Station Road, Bhadra, which is given on rent to the defendant appellant as tenant. The rent of the suit property is Rs. 60/- per month and the tenancy is monthly tenancy, which starts on first day of the month and ends on the last day of the month. The defendant had not paid the rent for more than three years ,therefore, the plaintiff served a notice upon the defendant under Section 106 of the Transfer of Property Act (hereinafter referred to as 'the Act'), through his counsel on 10.03.2004, which was received by the defendant on 12.03.2004 and the tenancy expired on 31.03.2004. Even after termination of the tenancy, the defendant is in possession of the property as a trespasser. After termination of the tenancy by legal notice plaintiff respondent is entitled to get the vacant possession of the suit property. The plaintiff defendant also filed a suit for recovery of arrears of rent of Rs. 2160/-. He further prayed for decreeing the suit for mesne profit at the rate of Rs. 60/- per month till he gets the possession of the property.

5. The defendant in the written statement took several objections stating that the plaintiff respondent is not the sole owner of the property, because after the death of his father Mr. Loon Karan, all the brothers are the co-owners of the property. Therefore, the plaintiff respondent has no right to file the suit . He further denied the fact of starting of the tenancy from the first day of the month and even he denied the service of the notice under section 106 of the Act. The learned trial court, on the basis of the pleadings of the parties ordered to frame the following issues:-

"1. Whether the suit of plaintiff under TP Act is not maintainable due to old rent act applicable in this area? (Defendant)

2. Whether the rent of this shop was Rs. 60 and whether the defendant has not paid rent to the plaintiff from 1.5.2001 to 31.3.2004 and total of Rs. 2160/- is due to defendant and whether the plaintiff is entitled to recover this money? (Plaintiff)

3. Whether the defendant remained no tenant of plaintiff after 31.3.2004 under section 106 TP Act and whether the tenancy expired on the mid night of the same day? (Plaintiff)

4. Whether the plaintiff is entitled to recover mesne profits from defendant at the rate of Rs. 60 per month? (Plaintiff)

5. Whether the plaintiff is entitled to get back the possession of the rented shop from defendant due to expiry of tenancy? (Plaintiff)

6. Whether the plaintiff has no cause of action to file the suit? (Defendant)

7. Whether the plaintiff has no right to file the suit? (Defendant)

8. Relief.''

6. The plaintiff respondent examined himself as PW/1 and defendant examined himself as DW/1. The plaintiff produced four documents and the defendant produced two documents in their support respectively. Counsel for the appellant contended that the issues, as decided by the learned trial court and affirmed by the learned appellate court suffers from illegality and irregularity and is not based on sound principles and on appreciation of the evidence both the courts have erred in appreciating the evidence of the5 plaintiff and defendant and holding that by issuing the notice under section 106 of the Act, the tenancy stood terminated because no legal notice was served. He further contended that the documentary evidence as produced by the plaintiff respondent has been relied on by the learned trial court as well as the first appellate court.

7. Per contra, the learned counsel for the respondent vehemently defended the judgment of the learned trial court and the first appellate court and he further contended that the issue as decided by the learned courts below, does not require any interference at this stage because no substantial question of law is involved in this appeal.

8-9. I have considered the rival contentions raised by the learned counsel for the parties. The appellant in his memo of appeal has proposed the following substantial questions of law :-

"(1) Whether the suit filed by the respondent-appellant was barred by the principle of res-judicate?

(ii) Whether the suit under Section 106 of the Transfer of Property Act was maintainable?

(iii) Whether the provisions of old Rent Control Act are applicable ?.

(iv) Whether the notice under section 106 T.P.Act was properly served upon the appellant?.

(v) Whether the appellant is defaulter in payment of rent?

(vi) Whether the appellant is tenant of respondent?

(vii) Whether the respondent has right to evict the appellant from the shop in dispute?

(viii) the appellant craves leave to add and supplement more substantial question of law at the time of arguments. "

10. Issue No.1 is regarding the controversy that whether the suit of the plaintiff under the Act, is not maintainable due to the Old Rent Act applicable. The learned trial court decided this issue against the defendant on 05.12.2005. It is admitted position that the New Rent Control Act came into force in the year 2001 and after coming into force of this Act, the Old Rent Control Act has been superseded and, therefore, the contentions of the learned counsel for the appellant that the suit under the Act is not maintainable, does not carry any force and, therefore ,issue No.1 as decided by the learned7 trial court and affirmed by the learned first appellate court, cannot be said to be illegal or irregular and the same is affirmed.

11. The burden of proving issue No. 2 is on plaintiff and the plaintiff specifically pleaded in the pleadings that the rent from 01.05.2004 to 31.03.2004 is Rs. 2160/-. The defendant has not produced any rent receipts in rebuttal of the oral evidence of the plaintiff and thus, issue No.2 decided by the learned trial court and affirmed by the first appellate court is also affirmed.

12. Regarding issue No.3 the main contention of the counsel for the appellant is that the defendant has admitted his signatures on the receipt of the notice served under section 106 of the Act, but the signature does not bear the date on which it has been received. It was received by the defendant , therefore, in the absence of any particular date, tenancy cannot be said to have not expired on the expiry of 15 days' notice.

13. I have perused the judgment of both the courts. The signature on the notice has been admitted by the defendant8 and when he has denied in the written statement even the issuance of notice under section 106 of the Act, the evidence produced by the defendant suffers from inherent contradictions and simply on the basis of not putting the date on service of the notice, the receipt of notice cannot be disbelieved and accordingly, issue No.3 decided in favour of the plaintiff is affirmed.

14. Issue No.4 is relating to entitlement of the plaintiff for recovery of Rs. 60/- per month as mesne property. It is the settled position of law that when under section 106 of the Act tenancy has been terminated by legal notice and the tenant is still occupying the said property as a trespasser after the termination of the tenancy, the land lord is not entitled to have rent of the property but is mesne property. In view of the settled position of law, issue No.4 decided by the learned trial court and affirmed by the first appellate court is affirmed.

15. Issue No.5 is a co-lateral issue to issue No.3 . When issue No.3 has been decided in favour of the plaintiff, the findings arrived upon by the learned trial court and affirmed by the first appellate court on issue No.5, cannot be said to be erroneous or illegal , therefore, it is affirmed. 9

16. Issue No.6 and 7 are simply rebuttal of issue No.3 and 5 although these issues have been decided jointly by the trial court . The learned trial court held that from the document Ex.4, partition deed of the family settlement of the plaintiff who got the disputed property as the owner and no rebuttal of evidence has been produced by the defendant- appellant so as to disbelieve the execution of Ex.4. As per Ex.4 family settlement, plaintiff respondent is the owner of the disputed property and being the owner, he has all right to file a suit after serving the notice under section 106 of the Act for possession and further after expiry of 15 days notice the plaintiff was entitled to have possession of the property and he got the cause of action on 31.03.2004. The learned appellate court also affirmed issue No.6 and 7 as decided against the defendant appellant and the same is affirmed.

17. Since the finding on issue No.2,3,4 and 5 are affirmed by this Court as decided in favour of the plaintiff respondent, the findings on issue No.6 and 7 affirmed by this Court against the defendant , this second appeal does not involve any substantial question of law, on which it requires to be admitted and the substantial question as proposed by the10 appellant in the memo of appeal, does not involve in this appeal.

18. Accordingly, the appeal is dismissed at the admission stage and the judgment of the learned trial court, as affirmed by the first appellate court is affirmed.

Appeal dismissed.
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