A landlord is entitled to mesne profits from a tenant who continues in possession of the property after the expiry of a notice terminating the tenancy under Section 106 of the Transfer of Property Act.

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 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 i