IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 513/2011 Reserved on: 21.11.2011 Decided on: 25.11.2011 ___________________________________________________ Reena Devi. …Appellant. Versus Gopal Dass. …Respondent & Sanjay Sood. …Proforma Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Sunil Mohan Goel, Advocate. For the Respondents : Nemo _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 6.8.2011 rendered by the learned Additional District Judge-(II), Kangra at Dharamshala, in RBT Civil Appeal No.212-P/10/2009. 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) instituted a suit against 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 the appellant-defendant No.1 and defendant No.2 Sanjay Sood (hereinafter referred to as ‘defendants’ for convenience sake) stating that he was owner in possession of land bearing Khata No.240 min, Khatauni No.352 min, Khasra Nos 36, 37 and Khata No. 46 min, Khatauni No.65, Khasra No.33, situated in Mohal Khatrehar, Mouza Paprola, Tehsil Baijnath, District Kangra, H.P. Plaintiff was having shops on this land. Defendants were inducted as tenant in the shop on monthly rent of ` 800/-. The tenancy was from month to month basis. The shop under tenancy of defendants was old. It required urgent repairs. He was in need of shop for his personal use and occupation. He did not want the defendants to be his tenants. The defendants did not pay rent. He issued notices to the defendants, under section 106 of the Transfer of Property Act to terminate the tenancy. Defendant No.1 refused to receive the notice whereas defendant No.2 received the notice. 3. Suit was contested by the defendants by filing separate written statements. On merits, defendants denied that they were tenants of the plaintiffs in the shop in question. It was stated that the shop was in good condition. It was also stated that 3 plaintiff was having other shops. Defendants stated that defendant No.1 was regularly paying rent to the plaintiff. No notice under section 106 of the Transfer of Property Act was received by defendant No.1. Defendant No.1 had been regularly paying rent to the plaintiff but he did not issue any receipt. According to defendant No.2 when he received the notice he contacted the plaintiff and the matter was compromised amicably and thereafter the plaintiff assured to withdraw the suit. Thereafter, defendant No.1 started paying rent to the plaintiff and it was defendant No.1, who was tenant in the shop in question. 4. Plaintiff filed replication. Issues were framed by the Civil Judge (Sr. Division), Palampur. He decreed the suit on 11.11.2009. Defendant No.1 preferred an appeal. Defendant No.2 was added as proforma respondent No.2. Learned Additional District Judge-(II), Kangra at Dharamshala dismissed the appeal on 6.8.2011. Hence, the present Regular Second Appeal by one of the defendants, namely, Reena Devi. 5. Mr. Sunil Mohan Goel has vehemently argued that the plaintiff had been receiving rent even 4 after issuance of notice under section 106 of the Transfer of Property Act. According to him, notice under section 106 of the Transfer of Property Act was not served upon defendant No.1. 6. I have heard Mr. Sunil Mohan Goel at length and have perused the pleadings carefully. 7. Plaintiff has appeared as PW-1. According to him, the shop was rented to the defendants on monthly rent of ` 800/- vide rent deed mark ‘X’. The shop was required by him for personal use and it also required urgent major repairs. He has proved Ex. PW-1/A and PW-1/B, which are the copies of notices issued to the defendants, under section 106 of the Transfer of Property Act, whereby their tenancy was terminated with effect from 30.4.2008. He has also proved Ex.PW-1/C envelop containing notice issued to defendant No.1. Ex. PW-1/D and PW-1/E are the postal receipts and Ex.PW-1/F, is the acknowledgement. 8. PW-2 Babu Ram has proved rent deed Ex. PW-2/A, bearing his signatures. PW-3 Rakesh Kumar Sood has proved site plan Ex.PW-3/A. PW-4 Roop Lal has proved envelop Ex.PW-1/C and endorsement Ex.PW-1/D. 5 9. Defendant No.1 has appeared as DW-1. According to her, earlier her husband and her Jeth (brother-in-law) Sanjay Sood were running the shop in dispute. The shop was being run by her exclusively after the death of her husband and the parties have entered into compromise in the month of May, 2008. She has admitted the rent deed Ex.PW-2/A. She has denied the receipt of notice. 10. DW-2 Kamal Sood has deposed that earlier the shop was being run by the husband of defendant No.1 and Sanjay Sood, defendant No.2, and in the month of May, 2008, Sanjay Sood relinquished the suit shop and started running his separate shop. Defendant No.1 was running the suit shop and was paying the rent. 11. DW-3 Sanjay Sood has deposed that he has no concern with the shop. The shop was being run by defendant No.1 exclusively. He has admitted that he was tenant over the suit shop since 1964. He has also admitted that the plaintiff has served notice Ex. PW-1/B upon him and acknowledgement is Ex. PW-1/F. He has admitted the rent deed Ex.PW-2/A. 12. Defendants had been served with notices under section 106 of the Transfer of Property Act vide 6 Ex.PW-1/A and PW-1/B. Defendant No.2 has admitted that he had received the copy of notice but defendant No.1 has refused to receive the envelop Ex.PW-1/C containing Ex.PW-1/A. Ex.PW-1/C has been duly proved by PW-4 Roop Lal, Postman. According to notices issued to defendants No.1 and 2, tenancy was terminated with effect from 30.4.2008. Defendants No.1 and 2 have admitted the execution of rent deed Ex.PW-2/A with the plaintiff. It has been admitted by DW-3 that the suit shop was rented out to them jointly vide rent deed Ex.PW-2/A. Moreover, DW-1 Reena Devi has also admitted in cross- examination that she alongwith Sanjay Sood (DW-3) had been paying rent in equal share to the plaintiff. Defendant No.2 is none other than Jeth of defendant No.1. 13. Mr. Sunil Mohan Goel has also argued that there was no proper description of the shop. Perusal of site plan Ex.PW-3/A clearly proves the dimensions of shop. Moreover, the defendant has admitted the description of the shop given by the plaintiff in para No.3 of the plaint. Mr. Sunil Mohan Goel has strenuously argued that the plaintiff had been accepting the rent even after the issuance of notices 7 Ex.PW-1/A and PW-1/B. Defendants have not placed any tangible evidence on record that the plaintiff had been accepting the rent after the issuance of notices whereby tenancy of the defendants was terminated with effect from 30.4.2008. It is conclusively proved that defendants No.1 to 2 were not paying rent to the plaintiff and their tenancy has been validly terminated after the issuance of notices under section 106 of the Transfer of Property Act. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties 14. Accordingly, in view of the observations and discussions made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 25.11. 2011 *awasthi*