The requirement of a notice under Section 106 of the Transfer of Property Act, 1882 is not mandatory in the event of eviction sought on the ground of forfeiture of tenancy.

1. This Regular Second Appeal is directed against judgments and decrees dated,13.10.2005 and 21.7.2006 passed respectively by the Additional Civil Judge (Senior Division), Anandpur Sahib (hereinafter described as the trial Court) and the Additional District Judge, Ropar (referred to hereinafter as the first appellate Court) whereby the suit and the appeal of the plaintiffs-appellants were dismissed.

2. A suit for possession was filed by the appellants by pleading that the suit property was owned by them after the death of their father-Ram Asra; that during his lifetime, Ram Asra had filed a suit for perpetual injunction against Amar Nath, predecessor-in- interest of the respondents, which was dismissed on 30.9.1980; that Civil Appeal No. 115 of 1980/1981 filed by Ram Asra was partly accepted on 19.1.1981; that no further appeal was filed and those findings were binding on the parties; that the respondents have violated the terms of the said decree and have constructed fresh pucca wall instead of kucha wall which existed; that in execution of the abovesaid decree, the respondents were proceeded against under Order 21, Rule 32 of the C.RC. and pursuant to those proceedings, they forfeited their right of tenancy as they had pleaded adverse possession; and that this assertion of theirs in the execution proceedings prompted the appellants to file the instant suit for possession.

3. In response to the notice issued by the trial Court, the respondents filed their written statement pleading that the suit was time- barred and that it was not maintainable. On merits, they claimed that they had become owner of the suit property by way of adverse possession after expiry of twelve years on 19.11.1983 and that the appellants were not the owners any more.

3A. The parties went to trial on the following issues: 1. Whether the plaintiffs are entitled to the possession of the disputed property after removing the construction?OPP

2. Whether the defendants have become the owners of the property by way of adverse possession?OPD

3. Whether the suit of the plaintiff is time barred?OPD

4. Whether the suit is not maintainable in the present form?OPD

5. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD

6. Relief.

4. The trial Court as well as the first appellate Court dismissed the suit and the appeal of the appellants.

5. In so far as the issue of ownership is concerned, both the Courts below concluded that the ownership of the appellants qua the suit property was not in dispute. However, the prayer of the appellants for possession was not answered in their favour on the ground that since in the earlier proceedings, the status of the respondents as tenants had conclusively been held, therefore, in the absence of any notice under Section 106 of the Transfer of Property Act, 1882 (for short, the Act), the suit for possession was defective.

6. Learned counsel for the appellants has contended with reference to the specific objection taken by the respondent in execution proceedings under Order 21, Rule 32 of the C.P.C. that since their tenancy right had been forfeited, they have become owners of the suit property by way of adverse possession. He further contended that once such a plea had been raised, then the requirement of issuance of notice under Section 106 of the Act was not mandatory and, therefore, the instant proceedings would not be vitiated in the absence thereof and would not take away the right of the appellants to get possession of the suit property.

7. On the other hand, learned counsel for the respondents strenuously contended that merely because the plea of adverse possession had been taken by the respondents, their status of tenant which was determined by the Courts in the earlier proceedings would not be affected and that in such an eventuality, the requirement of issuance of notice under Section 106 of the Act for the purpose of claiming possession could not be dispensed with. In support of