R.S.A. No. 2924 of 2005 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.M. No. 7586-C of 2005 and R.S.A. No. 2924 of 2005 (O&M) Date of Decision : 18.5.2009 Punjab wakf Board, Ambala Cantt .......... Appellant Versus Sadhu Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arun Palli, Sr. Advocate with Mr. Parminder Singh, Advocate for the appellant. Ms. Vanita Sapra Kataria, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 16.5.2005, passed by the learned Courts below, vide which suit filed by the plaintiff / appellant for possession by way of ejectment, has been ordered to be dismissed. The plaintiff / appellant filed a suit for possession by way of ejectment from the land measuring 11K-9M, which was said to have been let out to the defendant / respondent @ Rs. 225/- per month for the year 1988-89. It was the case set up by the plaintiff / respondent, that after the R.S.A. No. 2924 of 2005 2 year 1989 the defendant / respondent failed to pay the rent or vacate the premises. The tenancy was terminated by issuing a notice under Section 106 of the Transfer of Property Act. The suit was contested, it was pleaded therein, that tenancy of the defendant/ respondent was not terminated by issuing a notice under Section 106 of the Transfer of Property Act. It was also pleaded, that on account of failure of the plaintiff / appellant to receive the rent, the rent was deposited in the treasury, therefore, the tenant was paying rent regularly. The learned Courts below on appreciation of evidence have dismissed the suit, by recording a finding, that the plaintiff / appellant failed to prove the issuance of notice under Section 106 of the Transfer of Property Act as the receipt of notice by defendant was not proved. It was also held that the alleged under Section 106 of the Transfer of Property Act was not a valid notice, as the suit was filed for possession of 11K-9M of land, whereas in the notice vacation was sought for 9K-9M of land, therefore, there was no termination of tenancy over whole of the land. The Court further held, that even authority given to the authorized person was qua 9K-9M, whereas the suit was filed for 11K-9M. The learned senior counsel for the appellant contends that the appeal raises the following substantial question of law :- Whether the findings recorded by the learned Courts below are perverse inasmuch as after the expiry of the lease period the tenancy automatically had come to an end and, therefore, the suit was required to be decreed even without proof of notice under Section 106 of the R.S.A. No. 2924 of 2005 3 Transfer of Property Act ? In support of the substantial question of law the learned counsel for the appellant contends that the learned Courts below failed to notice, that the tenancy was for one year i.e. 1988-89, which came to an end on expiry of lease period. Once it was admitted that the plaintiff / appellant was owner of the suit property, they were entitled to possession thereof, thus, the decree passed by the learned Courts below being perverse, cannot be sustained in law. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The case set up by the plaintiff was, that the defendant / respondent was tenant under the appellant, the stand was also taken, that the tenancy was terminated by a notice under Section 106 of the Transfer of Property Act. Admittedly the plaintiff / appellant failed to prove the receipt of notice by the defendant / respondent, as the plaintiff / appellant failed to produce the best evidence in order to prove the issuance of notice as the postal receipt was not produced, and photo copy of the same was sought to be produced without permission for leading secondary evidence. The learned Courts below, therefore, rejected the plea of termination of tenancy by issuance of notice. The finding of the learned Courts below holding that the suit framed was not competent as the authority to file suit was only qua 9K-9M and two kanals of land was not included in the alleged notice under Section 106 of the Transfer of Property Act can not be faulted. The suit was rightly held to be bad in law. In view of R.S.A. No. 2924 of 2005 4 positive stand taken by the plaintiff / appellant, that the tenancy was terminated by issuing a notice, could only lead to conclusion that the continuation of tenancy on expiry of lease period was admitted. No ground is made out to interfere with the concurrent finding of fact recorded by the learned Courts below. The substantial question of law raised is answered against the appellant. No merit. Dismissed in limine. 18.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE