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2012 Supreme(Raj) 934
(Rajasthan High Court)
Nirmala Devi (Smt.) & Ors. Vs. Smt. Tulsi Devi (Dr. Kothari, J.)
HON'BLE DR. VINEET KOTHARI, J.
Nirmala Devi (Smt.) & Ors.
Versus
Smt. Tulsi Devi
S.B. Civil First Appeal No.127 of 2005, decided on 05.09.2012
Usman Gani, for Appellants-Defendants-Tenants;
Salil Trivedi, for Respondent-Plaintiff-Landlady
Headnote:Transfer of Property Act, 1882, Sec. 106; Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Sec. 13 — Trial court passed decree of eviction upon termination of lease/tenancy by service of notice u/S. 106 of the T.P. Act — Contention that rent stood paid — Held — Termination of the lease by serving notice u/S. 106 of the T.P. Act does not have to depend upon the grounds of eviction as stipulated in the Act of 1950 — Once the notice is served then issue of default in payment of rent and other grounds of eviction available to landlord under the provisions of Act of 1950 are neither relevant nor germane to such termination of lease in accordance with Sec. 106 of the T.P. Act — These two Acts for eviction proceedings under T.P. Act and under the Act of 1950 separate in different fields altogether. (Paras 10, 13 to 16)
lEifr vUrj.k vf/kfu;e] 1882] /kkjk 106( jktLFkku ifjlj ¼fdjk;k ,oa csn[kyh fu;U=.k½ vf/kfu;e] 1950] /kkjk 13 & lEifr vUrj.k vf/kfu;e dh /kkjk 106 ds rgr uksfVl dh rkehy gksus ij fopkj.k U;k;ky; us yht@vfHk/k`fr lekIr gksus ij csn[kyh dh fMØh ikfjr dh & ;g izfrdkj fd fdjk;s dk lank; fd;k tk pqdk Fkk & vfHkfu/kkZfjr & Vh-ih- vf/kfu;e dh /kkjk 106 ds rgr uksfVl dh rkehy gksus ls yht dh lekfIr dks 1950 ds vf/kfu;e esa ;Fkk fu;r csn[kyh ds vk/kkjksa ij fuHkZj ugha jguk gksrk gS & ,d ckj tc uksfVl dh rkehy gks tkrh gS rks fdjk;s ds lank; esa O;frØe ,oa csn[kyh ds vU; vk/kkj tks edku ekfyd dks 1950 ds vf/kfu;e ds rgr miyC/k gksrs gS os Vh-ih- vf/kfu;e dh /kkjk 106 ds vuqlkj yht dh ,slh lekfIr gsrq u rks lqlaxr gS vkSj u gh leqfpr vax gS & Vh-ih- vf/kfu;e ,oa 1950 ds vf/kfu;e ds rgr csn[kyh dh dk;Zokgh gsrq ;s nksuksa vf/kfu;e ,dne fHkUu fHkUu {ks=ksa esa izHkkoh gksrs gSaA ¼in la[;k 10] 13 ls 16½
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2. The plaintiff-respondent-landlady filed the suit seeking eviction of the defendants, who are the legal representatives of original tenant, Hotchand Dadlani, from the suit premises, which is a residential house, situated in “Baghicha Colony”, Abu Road of which the tenant was in possession of three rooms, latrine and bathroom on the first floor of the said house. The eviction suit was filed by the plaintiff-landlady on the ground of default in payment of rent. The tenancy in question was terminated by notice under Section 106 of the Transfer of Property Act Ex.3 dated 01.08.2003, which was duly received by the defendants-tenants on 06.08.2003. The original tenancy was created on 07.05.1994 on rent of Rs.1,400/- per month and as per Rent-note Ex.1 executed, after every two years, Rs.100/-was to be increased in the rent. The lease was originally given to Hotchand Dadlani, husband of the appellant No.1 Smt. Nirmala Devi and father of appellants No. 2 to 4, namely, Harish, Pradeep, Renu and Padma.
3. The present suit was filed by the plaintiff-landlady on 18.09.2003, which was tried by the learned trial court of Additional District Judge, Abu Road, District Sirohi and after taking the evidence on record in the form of PW.1 Vijay Kumar (son of the plaintiff-landlady and power of attorney holder of plaintiff), and documentary evidence in the form of Power of Attorney as Ex.1, Rent-Receipts for 07.07.2002 to 06.08.2002 as Ex.2, Copy of Notice to Quit dated 01.08.2003 as Ex.3, Reply to the said notice as Ex.4 and rejoinder to reply of notice as Ex.5 and Registered AD Receipts as Ex.6. On behalf of defendants, DW.1 Harish S/o Hotchand was examined by the learned court below.
4. As far as the Issues No. 1, 2 and 3 relating to determination of rent and arrears thereof are concerned, the learned trial court has decided that the plaintiff has failed to prove that monthly rent was Rs.2300/- at the time of filing of the suit. As against that the monthly rent would come to Rs.1800/- only as per Rent Note Ex.1 under which the tenancy was commenced in the year 1994 at Rs.1400/- with agreement between the parties increase the same by Rs.100/- every two years. Thus, the learned trial court arrived at the finding that the monthly rent was @ Rs.1800/- at the time of filing of the suit and not Rs.2300/- per month as claimed by the plaintiff. The other Issue No.4 regarding validity of the notice terminating the tenancy and receipt thereof under Section 106 of the T.P. Act is concerned, in the absence of any objection raised by the defendants in this regard, the learned court below decided the said issue in favour of plaintiff-respondent treating the tenancy/lease as terminated and directed the eviction of the lessee-tenants and directed the defendants to hand-over the possession of the suit premises immediately and also pay the rent/mesne profit @ Rs.1800/- per month and also for further period also till the vacant possession is handed over to the plaintiff.
5. Being aggrieved by the same, the defendantsappellants-tenants have preferred this first appeal and it has come on record that the original defendant, Hotchand Dadlani (lessee-tenant) expired on 26.09.2002 and thereafter his legal representatives have preferred this first appeal, who were already on record before the court below.
6. Mr. Usman Gani, learned counsel for the appellantsdefendants has mainly urged the following points for consideration by this Court:
(i). Firstly,
