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2014 Supreme(HP) 177
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA.
Before
The Hon ’ble Mr. Justice Dharam Chand Chaudhary, Judge.
RSA No.: 524 of 2000-F. and C.O. No.113 of 2001.
Reserved on: 25.02.2014. Decided on: 11.03.2014.
Kishori Lal and others. Versus Ashok Kumar and others.
For the appellants:Mr. Bhupender Gupta, Senior Advocate non-objectors with Mr. Neeraj Gupta and Mr. Ajeet Singh Jaswal, Advocate.
For the respondents/:Mr. K.D. Sood, Senior Advocate with Mr. objectors. Rajnish K. Lall, Advocate for respondents No.1, 6 to 8, 16(a) to 16(d)
and 18.
The main legal point established in the judgment is the legal and valid termination of tenancy under Section 106 of the Transfer of Property Act and the entitlement of co-sharers to seek partition and possession of their share in the property.
Headnote:
Transfer of Property Act - Tenancy Termination - Section 106 - Section 54, 107, 123 - Legal and valid termination of tenancy - Service of notice upon deceased defendant Bishan Dass - Applicability of provisions of the Act to the State of Punjab and Himachal Pradesh - Decree for partition and possession - Co-sharer's possession - Legal and factual sustainability of findings
Fact of the Case:
The case involves a dispute over a plot and a tin shed in a village. The plaintiffs, owners of the plot and tin shed, rented it out to the defendants. The plaintiffs terminated the tenancy and filed a suit for possession. The suit was dismissed, but on appeal, the judgment was set aside and remanded. The matter ultimately reached the present court due to further appeals and cross-objections.
Finding of the Court:
The court found that the tenancy was legally and validly terminated by the plaintiffs through a notice under Section 106 of the Transfer of Property Act. The court also held that the defendants, as co-sharers, were not entitled to remain as tenants over 4/5th share of the plaintiffs in the property in dispute. The suit for partition and possession was decreed in favor of the plaintiffs.
Issues: The key issues involved the termination of tenancy, the service of notice, and the entitlement of the defendants to remain as tenants over the plaintiffs' share in the property.
Ratio Decidendi: The court held that the tenancy was legally and validly terminated, and the defendants, as co-sharers, were not entitled to remain as tenants over the plaintiffs' share in the property.
Final Decision: The appeal was dismissed, and the cross-objections were allowed. The suit for partition and possession was decreed in favor of the plaintiffs.
Dharam Chand Chaudhary, Judge: Common judgment and decree dated 10.8.2000 passed by learned Additional District Judge (I), Kangra at Dharamshala (Camp at Una) in Civil Appeal No.130/93 (RBT No.170/94) and Civil Appeal No.131/93 (RBT No.171/94) allowing thereby partly the Civil Appeal No.130/93, whereas dismissing the Civil Appeal No.131/93, is under challenge before this Court in the present regular second appeal.
2.The plaintiffs aggrieved by the findings recorded by learned Sub Judge 1st Class, Court No.2, Amb District Una on issues No.2 and 9A had preferred Civil Appeal No.130/93 (RBT No.170/94), whereas, the defendants by the findings on issues No.1 and 9C Civil Appeal No.131/93 (RBT No.171/94) in the lower appellate court. The findings on the remaining issues being not challenged either by the plaintiffs or the defendants have attained finality.
3.The bone of contentions in the present lis is a plot marked ABCD and a tin shed situated in village Chintpurni, Tehsil Amb, District Una shown red in the site plan Ex.PW-1/A and bounded in North by bazaar, South a bheth, East shop of Faqir Chand and West plot of Mukand Lal etc.
4.Admittedly, the respondents/cross-objectors (hereinafter referred to as “the plaintiffs”) are owners of the plot and tin shed constructed thereon. There is again no controversy with regard the same rented out by them to Shri Bishan Dass, predecessor-in-interest of the appellants/non-objectors (hereinafter referred to as “the defendants”). While as per the plaintiffs the tin shed was rented out to said Shri Bishan Dass on 6.6.1974 at the monthly rental of !250/-, the defendants have denied the same and as per their case said Shri Bishan Dass was inducted as tenant about 30 years ago at the yearly rental of !333/-, which later on was increased to !600/-. There used to be a building belonging to the plaintiffs in existence on the plot, however, the same gutted in fire. They could not construct the new building and rather raised only a tin shed which was rented out to deceased defendant, Shri Bishan Dass. He failed to pay the rent with effect from 6.6.1975 and as the plot was required by the plaintiffs for raising construction of a new building thereon, the tenancy of deceased defendant, Bishan Dass was terminated vide notice dated 3.5.1978 served upon him in accordance with the provisions contained under Section 106 of the Transfer of Property Act. The notice was despatched to said Shri Biahsn Dass through registered AD post on his correct address. The registered AD cover was, however, returned to them undelivered. They again mailed the notice on 22.5.1978 under certificate of posting and thereby terminated the tenancy of said Shri Bishan Dass in accordance with law. He, however, failed to hand over the vacant possession of the tin shed and also to pay the arrears of rent due and admissible to them. This has led in institution of a suit registered as case No.105 of 1978 for the decree of possession through ejectment on 20/29.6.1978 in the Court of Senior Sub Judge, Una. No doubt, the notice under Section 106 of the Transfer of Property Act was held to be legally and validly served upon deceased defendant, Bishan Dass, however, the suit came to be dismissed by learned Senior Sub Judge vide judgment dated 9.12.1982, Ex.D-2 for the reason that said Shri Bishan Dass had purchased 1/5th share of Shri Balbir Bhushan Nath in the plot and the structure in existence thereon on 24.10.1978, i.e. during the pendency of the suit and has become owner thereof to the extent of 1/5th share. Therefore, in the opinion of Senior Sub Judge said Shri Bishan Dass being one of the co-owner could have not been ejected from whole of the property in dispute. An application under Order 6 Rule 17 of the Code of Civil Procedure preferred by the plaintiffs for amendment of plaint necessitated consequent upon acquiring 1/5th share in the suit property by deceased defendant, Bishan Dass was also dismissed by learned Senior Sub Jud
