IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 20/2010 Reserved on: 26.9.2011 Decided on: 29.9. 2011 _____________________________________________ Manohar Singh alias Harjit Singh. …Appellant. Versus Sardar Rattan Singh. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. K.D. Sood, Advocate with Mr. Rajnish K. Lall, Advocate. For the Respondent : Mr. Rajiv Jiwan, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 3.11.2009 rendered by the learned Additional District Judge (1), Kangra at Dharamshala in Civil Appeal No.3-B/2006. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent- plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for possession and recovery. Plaintiff is owner of one shop in ground floor 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 and room in the first floor situated on land comprising khata No.19 min, Khatauni No. 66, Khasra No. 295 area measuring 0-00-45 hectares and one room, i.e. godown situated on land comprising Khata No. 297, Khatauni No. 567, Khasra No.291 and 292 land measuring 0-00- 38 hectares, as per jamabandi for the year 1997-98, situated at Mohal, Mauza and Tehsil Baijnath, District Kangra, H.P. The appellant-defendant (hereinafter referred to as the ‘defendant’ for convenience sake) was occupying the said premises as tenant of the plaintiff at the rent of ` 2,500/- per month, i.e. rent for the shop in ground floor and room in the first floor ` 1,500/- per month and monthly rent of the godown was ` 1,000/-. The tenancy was from month to month basis. The plaintiff was in need of premises for personal use. He was not interested to retain the defendant as tenant. The plaintiff requested the defendant to handover the vacant and peaceful possession of the premises in dispute but he did not pay any heed to the same. A notice was served on the defendant, under section 106 of the Transfer of Property Act on 2.9.2003 for terminating the tenancy w.e.f. 30.9.2003. The notice was duly received by the defendant on 9.9.2003. The defendant was in arrears of rent w.e.f. 1.6.2003 to 3 30.9.2003 and had failed to pay the same without any reason. It is in these circumstances, plaintiff filed the suit for possession by way of ejectment of the defendant and also for recovery of ` 10,000/- on account of arrears of rent with effect from 1.6.2003 to 30.9.2003 at the rate of ` 2,500/- per month. 3. The suit was contested by the defendant. The defendant has admitted the tenancy, however, according to him, the rent was ` 1500 /-. According to him, no notice under section 106 of the Transfer of Property Act was served upon him. He has tried to pay the rent to the plaintiff @ ` 1,500/- but he refused to receive the same. He has already paid rent with effect from September 2002 to November 2002, vide cheque dated 23.12.2002 for a sum of ` 40,500/-. 4. The replication was filed by the plaintiff. The issues were framed by the learned Civil Judge (Senior Division) on 13.7.2004. He decreed the suit on 5.12.2005. The suit was also decreed for arrears of rent with effect from 1.6.2003 to 30.9.2003 @ ` 1,500/- per month, i.e. total amount of ` 6,000/-. Defendant feeling aggrieved by the judgment and decree dated 5.12.2005 filed an appeal before the learned Additional District Judge (1), Kangra at Dharamshala bearing Civil Appeal 4 No. 3-B/2006. Plaintiff also filed an appeal bearing Civil Appeal No. 9-B/2006 against the judgment and decree dated 5.12.2005 only to the extent whereby the rent has been restricted to ` 1,500/- per month instead of ` 2,500/- per month. Learned Additional District Judge dismissed Civil Appeal No. 3-B/2006 preferred by the defendant on 3.11.2009 and the cross-appeal filed by the plaintiff bearing Civil Appeal No. 9-B/2006 was allowed and the plaintiff was held entitled to rent @ ` 2,500/- per month instead of @ ` 1,500/- per month, as decreed by the trial court. The plaintiff was held entitled to ` 10,000/- and to that extent the decree was modified. This Regular Second Appeal was admitted on 8.1.2010 on the following substantial questions of law: 1. Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence as also pleadings of the parties and inadmissible evidence, particularly, Ex.PW-1/A, Ex.PW-1/B, Ex.PW-1/C and D-1 and the statement of witnesses Rattan Singh, Vinod Kumar, Mastan Chand as also DW-1 Manohar Singh and DW-2 Gian Chand? 2. Whether a valid notice under section 106 of the Transfer of Property Act terminating the tenancy f the appellant could be assumed to have been served on the appellant when the receipt of the notice was not in respect of the appellant? 3. Whether the assumption that the rent was increased from 1500 to 2500/- per month is sustainable on the evidence on record, 5 particularly, when the appellant had paid a cheque of 40,520/- representing rent of 27 months at the rate of 1500/- per month and the assumption that 29,500/- were paid in cash is sustainable on the evidence of Vinod Kumar, Mastan Chand and Gian Chand? 5. Mr. K.D. Sood has argued that the documents Ex.PW-1/A, Ex.PW-1/B, Ex.PW-1/C and D-1 were not admissible. According to him, both the courts below have misread the statements of DW-1 Manohar Singh and DW-2 Gian Chand. He then argued that the issuance of notice under section 106 of the Transfer of Property Act was not valid. According to him, the notice was not received by the defendant. He also argued that the rent was ` 1,500/- and not ` 2,500/-. According to him, defendant has already paid a sum of ` 40,520/- for 27 months @ ` 1,500/-. 6. According to Mr. Rajiv Jiwan there is no misreading of the evidence of the courts below. According to him, the notice has been served validly upon the defendant. He lastly contended that the rent was ` 2,500/- and not ` 1,500/-. 7. I have heard the learned counsel for the parties and have perused the records carefully. 8. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are 6 taken up together for determination to avoid repetition of discussion of evidence. 9. Plaintiff has appeared as PW-1. He has proved issuance of notice Ex.PW-1/B on the defendant. He has also produced postal receipt Ex.PW-1/C. Plaintiff has also stated that he had filed the suit against the defendant in which compromise was effected between them in the presence of Mastan Chand Rana, Vinod Kumar and Rakesh Sood. According to the terms and conditions of the compromise, the defendant had agreed to pay the rent of 28 months @ ` 2,500/- per month and the defendant paid a sum of ` 40,500/- and ` 29,500/- in cash. He has paid the rent upto May, 2003 and thereafter no rent has been paid to him. 10. PW-2 Vishwa Mitar has proved site plan Ex.PW-2/A. According to PW-3 Vinod Kumar, the rent was ` 2,500/- per month and the defendant is the tenant of plaintiff. The compromise was entered into between the parties in the presence of Rakesh Sood and Rana and the defendant paid a sum of ` 40,500/- by way of cheque and ` 29,500/- by way of cash to the plaintiff. 11. Defendant has appeared as DW-1. He has testified that the rent was ` 1,500/- per month. In 7 previous suit, he had made a payment of ` 40,500/- of 27 months to the plaintiff through cheque. The matter was settled in the Lok Adalat. The payment was made by him to the plaintiff in the presence of witness Gian Chand. His name is Manohar Singh and not Mahinder Singh. According to him, no notice was received by him from the plaintiff. He has denied the suggestion in the cross-examination that the rent of the shop and rooms was ` 2,500/- per month and ` 29,500/- was paid by him in cash to the plaintiff. 12. DW-2 Gian Chand has testified that a sum of ` 40,500/- was paid to the plaintiff by the defendant in his presence. 13. DW-3 Tilak Raj has testified that as per receipts, the rate of rent for the years 1997, 1998 and 1999 was ` 1,500/-. 14. The notice Ex.PW-1/B has been served upon the defendant, to which he has not chosen to file any reply. The plaintiff has also proved receipt Ex.PW-1/C. Mr. K.D. Sood has argued that in Ex.PW-1/C instead of Manohar Singh, Mahinder Singh has been written. It is evident from Ex.PW-1/A that in the previous civil suit No.70/2001, the name of defendant has been written as Mahinder Singh alias Harji son of Ajeet Singh. His 8 statement was also recorded in the court on 21.12.2002 where his name has been mentioned as Mahinder alias Manohar alias Harji. Thus, the name of defendant is Mahinder Singh alias Manohar Singh alias Harji. The address on the notice is of the defendant. According to Ex.PW-1/B, the tenancy has been terminated with effect from 30.9.2003 and the defendant has been called upon to pay a sum of ` 10,000/- towards rent with effect from 1.6.2003 to 30.9.2003. Defendant has also paid a sum of ` 40,500/- by way of cheque to the plaintiff on the basis of agreement entered between him and the plaintiff. This matter was settled between them in the Lok Adalat. A sum of ` 29,500/- has been paid by him to the plaintiff in cash. According to statement of PW-3 Vinod Kumar, the rent was ` 2,500/- per month. Defendant had agreed to pay rent @ ` 2,500/- per month at the time when compromise was entered between the plaintiff and defendant in the presence of Rakesh Sood and Rana. PW-4 Mastan Chand has also supported the version of PW-3 Vinod Kumar. He was present at the time when payment was made by the defendant. No suggestion has been put by the defendant when PW-3 Vinod Kumar and PW-4 Mastan Chand were examined whether at the time when the 9 compromise was being made; DW-2 was also present. DW-3 has not proved the receipts. The defendant has failed to prove that the address was not correct. The notice was issued to him under registered cover, duly prepaid and on correct address. Thus, the findings recorded by the first appellate court that the rent was ` 2,500 per month and not ` 1,500/- are correct. The courts below have correctly appreciated the oral as well as documentary evidence led by the parties. 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 29.9. 2011 *awasthi*