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2014 Supreme(HP) 176
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Dharam Chand Chaudhary, J.
Kishori Lal and others – Appellants
Versus
Ashok Kumar and others – Respondents
RSA No. 524 of 2000-F and CO No. 113 of 2001
Decided On : 11.03.2014
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.
The main legal point established in the judgment is the proper termination of tenancy under Section 106 of the Transfer of Property Act and the admissibility of postal receipts as evidence of service of notice.
Headnote:
Transfer of Property Act - Tenancy - Section 106, Section 27 of the General Clauses Act, Evidence Act - The court discussed the termination of tenancy under Section 106 of the Transfer of Property Act and the admissibility of postal receipts to prove the service of notice. The court found that the notice was duly served upon the deceased tenant, leading to the termination of the tenancy. The court also addressed the issue of rent amount and decreed the suit for partition and possession of the plaintiffs' share in the property.
Fact of the Case:
The case involved a dispute over a plot and a tin shed in a village. The plaintiffs sought possession of their property after terminating the tenancy of the deceased defendant. The defendants claimed to be in possession as tenants and disputed the termination of the tenancy.
Finding of the Court:
The court found that the tenancy was legally terminated and decreed the suit for partition and possession of the plaintiffs' share in the property. The court also dismissed the defendants' appeal and allowed the plaintiffs' cross-objections.
Issues: The main issues revolved around the termination of tenancy, the admissibility of postal receipts, the amount of rent, and the entitlement to possession of the property.
Ratio Decidendi: The court held that the notice of termination was duly served, the rent amount was established, and the plaintiffs were entitled to separate possession of their share in the property.
Final Decision: The appeal was dismissed, and the suit was decreed for the relief of separation of the plaintiffs' share by way of partition and possession. The cross-objections were allowed, and the judgment and decree were modified accordingly.
Dharam Chand Chaudhary, J.
1. 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 Rs.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 Rs.333/-, which later on was increased to Rs.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
