RSA No.3136 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3136 of 2010. Decided on: June 03, 2011. Mam Raj. .. Appellant VERSUS Ram Pal Gupta. .. Respondent * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.S.K.Sud, Advocate, for the appellant. Mr.B.R.Mahajan, Advocate, Ms.Gaganpreet Kaur, Advocate, for the respondent. M.M.S. BEDI, J. (ORAL) This is defendant's appeal against the decree for possession passed by the lower appellate Court holding that the plaintiff-respondent is entitled to get the possession of the shop in question by way of ejectment of the defendant-appellant whereby the plaintiff-respondent has also been held entitled to get an amount of ` . . . 1 RSA No.3136 of 2010 550/- per month w.e.f., 01.11.2008, till the delivery of possession along with interest @ 9 per cent per annum. Briefly stated, the facts of the case are that the plaintiff-respondent had filed a suit for possession and recovery against the appellant alleging that the defendant-appellant was inducted as a tenant by the plaintiff at a monthly rent of ` 1,500/- for a period of 11 months vide rent note executed by the defendant- appellant on 20.08.2002. As per the terms of the agreement, the plaintiff-respondent was entitled to get the shop vacated by giving one month's notice to the defendant-appellant and the defendant- appellant had also promised that he would vacate the shop after giving one month's notice. A notice on the registered cover as well as UPC was sent to the defendant on 10.02.2006 which was refused by the defendant-appellant. The tenancy was terminated w.e.f., 10.03.2006, as such, the possession was claimed by the plaintiff- respondent. The defendant had contested the suit taking up a plea that the shop had been taken on rent in the year 1983 @ ` 100/- per month and that no agreement was executed on 20.08.2002. The defendant-appellant claimed that he applied for electric connection and deposited sum of ` 650/- as security of the electric meter in the shop in the year 1984 and the plaintiff-respondent being owner of the shop, gave an affidavit to abide by the rules and regulations of the Punjab State Electricity Board. It was claimed that rent agreement dated 20.08.2002, was a forged document. It was claimed that son of the plaintiff-respondent was an agent of LIC and the defendant- . . . 2 RSA No.3136 of 2010 appellant had taken a LIC policy from him as such, he had obtained signatures of the defendant-appellant on different papers on which the rent agreement had been forged. The trial Court after permitting the parties to lead their respective evidence arrived at a conclusion that the rent note EX.P1 does not stand proved as the defendant- appellant was already in possession of the shop as tenant and there had not been any break in the tenancy, as such, it was held that the shop had been taken on rent by the defendant-appellant in the year 1983 at a monthly rent of ` 100/- and the said amount had been enhanced from time to time and it was ` 550/- per month at the time of filing of the suit, but the trial Court at the same time held that the tenancy stood terminated vide notice dated 07.02.2006, as the postal receipts EX.P3 & EX.P4, had been proved indicating the termination of the tenancy. The contention of the defendant- appellant that the notice had been served upon him had been disbelieved and on the basis of the above said finding, the suit of the plaintiff-respondent was decreed. The lower appellate Court had upheld the judgment and decree passed by the trial Court. Counsel for the defendant-appellant has contended that the finding of the trial Court that the defendant had been in possession of the shop in dispute w.e.f., 1983, had not been challenged by the plaintiff-respondent as such, it is established that on the basis of a forged rent note alleged to have been executed on 20.08.2002, the plaintiff-respondent had sought eviction, disentitling him to seek eviction on the basis of relationship of lesser and lessee. . . . 3 RSA No.3136 of 2010 He also argued that the defendant having been proved to be in possession much prior to the alleged rent note cannot be ordered to be evicted. He has placed reliance on Lohia Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs.Atmaram Kumar, (1993) 4 Supreme Court Cases 6, wherein ejectment order passed against a tenant was set aside by Hon'ble the Supreme Court, holding that the notice of ejectment having not been specifically denied in the written statement, it will be deemed that the same has been admitted. Counsel for the appellant has submitted that a specific plea had been taken by the defendant-appellant that no notice had been served upon him. The said plea had not been denied in the replication, as such, it should be taken to be an admission under Order 8 Rule 5 CPC, for arriving at a conclusion that the notice of termination of tenancy has not been served upon the defendant-appellant. On the other hand, Mr.B.R.Mahajan, learned counsel for the respondent has placed reliance on M/s Nepony Investments (P) Ltd., Vs. Santokh Singh (HUF), 2008 (1) RCR (Rent) 6, in support of his contention that in a suit for eviction of tenant, no notice to quit under Section 106 of the Transfer of Property Act, is required to be served on a tenant. It has been held in the said case that filing of eviction suit under general law is itself a notice to quit on tenant. In this context, reliance was placed on V.Dhanpal Chettiar Vs. Yesodai Ammal, AIR 1979 SC 1745, in which the same view has been taken by Hon'ble the Apex Court that . . . 4 RSA No.3136 of 2010 no notice to quit was necessary under Section 106 of the Transfer of Property Act, in order to enable the lessor to get a decree of eviction against the tenant. Counsel for the appellant has vehemently contended that said judgment is not applicable to the facts of the present case as the notice which had been sent to the appellant was on the basis of relationship between the parties on the basis of agreement dated 20.08.2002. I have carefully considered the contention of the learned counsel for the defendant-appellant and gone through the judgments passed by the Courts below. The substantial question of law which is required to be determined in the present case is whether there is a relationship of lessor and lessee between the plaintiff-respondent and defendant- appellant and whether the said relationship has been terminated by issuance of a notice under Section 106 of the Transfer of Property Act, or otherwise, if so, to what effect? No doubt, in the present case, the plaintiff had filed a suit on the basis of a rent agreement dated 20.08.2002, the trial Court has given a finding of fact that the execution of the said agreement has not been established and that the relationship of plaintiff-respondent and defendant-appellant is not established on the basis of said agreement but at the same time, a finding of fact has been arrived at by the Courts that the defendant-appellant had been in possession of the property as a tenant w.e.f., 1983. There is . . . 5 RSA No.3136 of 2010 no controversy required to be adjudicated regarding the rate of rent but for adjudication of this appeal, the existence of relationship of lessor and lessee is required to be determined. No doubt, the plaintiff-respondent had not challenged the finding of the trial Court pertaining to the rent agreement dated 20.08.2002, but at the same time, it is an admitted fact that the defendant claims himself to be in possession of the property as a tenant on payment of rent as there is no controversy regarding the relationship between the plaintiff and defendant, the finding of the trial Court regarding the rent agreement dated 20.08.2002, being not validly executed document will not affect the relationship of lessor and lessee. A person can be in possession of the property either as an owner or a tenant or a licencee or trespasser. The status of the defendant being as that of a tenant having been established by both the Courts below, though on different reasons, as claimed by the plaintiff-respondent, the plaintiff- respondent is entitled to seek the eviction after termination of tenancy. Another question which is required to be determined is whether the defendant-appellant can claim immunity from eviction on the ground that he had not been served upon a notice under Section 106 of the Transfer of Property Act. In this context, the matter is no more res integra. The controversy stands settled by Hon'ble the Apex Court in case M/s Nepony Investments (P) Ltd., (supra), wherin it has been held that suit for eviction of the tenant can be filed without a notice to quit under Section 106 of the Transfer of Property Act. It is also a well settled principle of law that suit of eviction under . . . 6 RSA No.3136 of 2010 general law is itself a notice to quit on tenant as has been held in M/s Nepony Investments (P) Ltd., (supra). In view of above circumstances, I do not find any ground to interfere in the eviction order passed by the Courts below against the defendant-appellant. The appeal is dismissed. Parties are left to bear their own costs. However, since the defendant- appellant is in possession of the property in dispute since 1983, in the interest of justice, three months' time is granted to the defendant- appellant to vacate the premises subject to payment of ` 1,000/- per month for the use and occupation of the same for said three months. A copy of order be given dasti on payment of usual charges. (M.M.S.BEDI) JUDGE June 03, 2011. rka . . . 7