CSA 118/2008 - LRs of late Shri Mangilal & Anr. Vs. Otmal & Ors. Judgment dt.24.11.08 1/2 S.B. CIVIL SECOND APPEAL NO.118/2008 LRs of late Shri Mangilal & Anr. Vs. Otmal & Ors. Date of order : 24th November, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Rajesh Shah for the appellant. Mr. Suresh Shrimali for the respondents. --------- 1. Heard learned counsels for the parties. 2. Both the Courts below though having found that the notice under Section 106 of the Transfer of Property Act was duly served upon the appellant-defendant-tenant and therefore, the tenancy was determined in accordance with the provisions of the Transfer of Property Act and since the Rent Control Act did not apply at village Krishna Ganj, Tehsil and District Sirohi where the suit premises are situated, it being not a municipal area, yet the trial court did not pass the eviction decree on the ground that the construction cost of Rs.8,124/- of the construction of Dhaba / hotel raised by the appellant-defendant was liable to be adjusted against the arrears of the rent due to the plaintiff and, therefore, the default having not been proved by the plaintiff-respondent, the plaintiff was not entitled to the decree of eviction. 3. The plaintiff, therefore, filed the first appeal before the first appellate court being aggrieved by the judgment of trial court. The plaintiff urged that though the tenancy was determined in accordance with law by serving notice on the defendant and, therefore, the question of plaintiff proving the default in payment of CSA 118/2008 - LRs of late Shri Mangilal & Anr. Vs. Otmal & Ors. Judgment dt.24.11.08 2/2 rent relevant under Section 13(1)(a) of the Rent Control Act did not arise in the present case and the appellate court therefore, granted this decree of eviction against the appellant-defendant. 4. The appellant-defendant has preferred this second appeal before this Court seeking to raise the substantial questions of law as narrated in the memo of appeal. 5. Having heard learned counsel for the parties, this Court is satisfied that no substantial question of law arises in the present case. The first appellate court as well as the trial court had found that the tenancy was determined after proper service of the notice under Section 106 of the Transfer of Property Act and, therefore, the same stood determined in accordance with the provisions of the said Act. Since the Rent Control Act did not apply to the said place Krishna Ganj, therefore, the question of proving of default in payment of rent was not called for. The adjustment of the construction cost allowed by the learned trial court while deciding the issue No.3 was though reversed by the first appellate court deserves to be however, maintained. The learned counsel for the plaintiff-respondent agrees to the same. Therefore, said part of finding of issue No.3 is maintained in favour of defendant. 6. Accordingly, this second appeal is found to be devoid of merit and the same is liable to be dismissed. The same is accordingly dismissed. No costs. [ DR. VINEET KOTHARI ], J. item No.12 babulal/-