HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 215 of 2007. Decided on: 8.4.2008. Kuldip Saklani ………Appellant. Versus Hima Devi and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Ramesh Sharma, Advocate. For the respondents: Mr.Sanjeev Kuthiala, Advocate. V.K. Ahuja, J (Oral): This is a regular second appeal filed by the appellant/defendant against the judgment and decree of the court of learned District Judge, Mandi, dated 5.3.2007, vide which the judgment and decree passed by the learned Civil Judge (Senior Division), Mandi, dated 1.4.2005, decreeing the suit filed by the predecessor-in-interest of respondents No.1 to 3, Puran Chand, for ejectment and possession of the suit property as well as for recovery of rent amounting to Rs.21,000/-, was affirmed. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that the predecessor-in-interest of respondents No.1 to 3, namely, Puran Chand (here-in-after referred to as the plaintiff) filed a suit for ejectment and possession as well as for recovery of rent amounting to Rs.21,000/- as against the appellant, who was impleaded as defendant No.1, and proforma respondent No.8, who was impleaded as defendant No.2. It was alleged by the plaintiff that he is owner in possession of the land in suit to the extent of 1/2 share, where he has constructed a double storeyed shop-cum-house. There are two shops in the front portion of the ground floor and two rooms on the back side of the shop. It was alleged that 2- 1/2 years ago, the defendants took only one shop and one room behind the shop in the ground floor on a monthly rent of Rs.3,000/- and the defendants had agreed to vacate the premises on demand of the plaintiff. The plaintiff issued a notice to the defendants under Section 106 of the Transfer of Property Act, but the defendants did not vacate the premises. Hence the suit for possession as well as for recovery of arrears of rent from January 2000 to 27th July, 2000 for 7 months amounting to Rs.21,000/- filed by the plaintiff. Defendant No.1 contested the suit on the ground that he had taken the shop and one room behind the shop in the ground floor from one Paras Ram son of Shri Gawanu and not from the plaintiff. The defendant pleaded that he had not entered into any agreement with the plaintiff and since he had taken the premises from Paras Ram, who was the owner of the premises who had put him in physical possession and to whom he had been paying the rent regularly, therefore, he had prayed for the dismissal of the suit. - 3 - On the pleadings of the parties, issues were framed mainly in regard to the question as to whether the plaintiff was owner of the suit property and tenancy of the defendant has been terminated under Section 106 of the Transfer of Property Act and as to whether the defendants are in arrears of rent; if so to what extent. The parties led their evidence and the learned trial Court concluded that the plaintiff was the owner of the suit premises and he had rented out the same to the defendants and the defendants were also held to be in arrears of rent and accordingly the learned trial Court decreed the suit of the plaintiff in full. On appeal, these findings were affirmed by the learned First Appellate Court. I have heard the learned counsel for the parties at the stage of admission and have gone through the record of the case. During the course of arguments, the learned counsel for the appellant had submitted that the agreement Ext.DW-1/A entered in between the appellant and Paras Ram has not been considered by the courts below. It was also submitted that electricity connection Ext.DW-7/A in the name of Paras Ram was also not considered by the courts below. The third plea taken was that the notice issued to the defendants elapsed during the mid of the month and the learned courts below have not considered this plea that the notice in question was not a valid notice. I have gone through the judgment of the learned trial court. A perusal of the judgment shows that the learned trial Court had referred to the agreement Ext.DW-1/A entered in between the appellant and Paras Ram, - 4 - brother of the plaintiff. A perusal of para 16 of the judgment of the learned trial Court shows that this document was duly considered and findings were given by the learned trial Court in regard to this document. In coming to the other document Ext.DW-7/A (electricity connection), a perusal of the judgment shows that in para 17, the learned trial Court had considered the question and given its findings. Accordingly, it has been concluded that both these documents do not support the claim of the defendants. Coming to the third plea that the notice expired during the mid of the month or it was not a valid notice, I have gone through the pleadings of the defendants. As per the written statement filed by them, there is no reference to this plea which is now being raised by the appellant during the course of arguments. Even if this plea had been raised before the learned First Appellate Court, it would have been immaterial since no such plea arises from the pleadings of the defendants. It is, therefore, clear from a perusal of the impugned judgments that oral as well as all documentary evidence was considered by the courts below and thus, no occasion arises for the admission of the appeal or reappraisal of the evidence. A perusal of the substantial questions of law formulated at page 10 of the paper book also shows that reference was made to these documents that they had been misinterpreted, but the courts below have given their findings in regard to these questions and as such the appeal does not deserve admission. - 5 - In view of above discussion, there is no merit in the appeal filed by the appellant, therefore, the same is dismissed. Parties are left to bear their own cost. In view of the final disposal of the main appeal, all the pending miscellaneous applications shall also stand disposed of. Interim order, if any, shall stand vacated. April 8, 2008. (V.K. Ahuja), (TILAK) Judge.