1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Chothilal Vs. Moorti Kaila Deviji S.B. CIVIL SECOND APPEAL NO.50/1996. UNDER SECTION 100 OF THE CPC. DATE OF JUDGMENT: 12th October, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr. B.L. Mandhana for the appellant. Ms. Namita Parihar for the respondent. BY THE COURT: This civil second appeal under section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 29th November, 1995 passed by the Additional District Judge, Karauli in Civil Appeal No.4/1993 whereby the judgment and decree dated 14th December, 1992 passed by the learned Munsiff, Karauli in Civil Original Suit No.191/1978 has been reversed and the suit for rent and eviction filed by the plaintiff against the defendant-appellant has been decreed. Briefly stated the facts for the disposal of the present second appeal are that a suit for ejectment was filed in the year 1978 on behalf of the plaintiff through holder of general power of attorney of the trust. In the plaint, it was, inter- alia, averred that the defendant-appellant was tenant of the 2 plaintiff's premises is situated in town Karauli measuring about 69'x65'. A rent-note was also executed on 26th November, 1968 and was signed by the defendant-appellant. It was also averred that the monthly tenancy was determined on 26th October, 1978 by serving a notice upon the defendant-appellant. Since the defendant-appellant did not pay the arrears of rent, therefore, he was liable to pay arrears of rent for three years i.e. From 1975 to 1978. The rented piece of land was required for the construction of a dispensary. The defendant despite notice has not vacated the premises. A prayer in the suit was made for arrears of rent from 1975 to 1978 and also ejectment of the defendant-appellant from the suit premises. The defendant-appellant contested the suit and it was the stand in the written statement that the land in dispute was of the defendant and plaintiff was not the landlord and there was no relation between the plaintiff and defendant as landlord and tenant. It was also averred in the written statement that the disputed land was in possession of the defendant since 1969, a floor mill was installed there and a residential unit was also constructed thereon. It was also pleaded in the alternative that notice served was not a valid notice to determine the tenancy. On the basis of the pleadings of the parties, the learned trial court framed four issues including relief. The learned trial court recorded its finding on the basis of evidence 3 adduced by both sides that the plaintiff's suit was not liable to be decreed as tenancy was not proved. On the basis of the finding recorded on issue no.1, issue no.2 which was in relation to monthly rent of Rs.3/- per month was also decided against the plaintiff. Issue no.3 was in relation to the notice served on the defendant under section 106 of the Transfer of Property Act has been decided in favour of the defendant holding that since there were two rent notes, therefore, notice to determine tenancy was not valid. Issue no.3-A which was in relation to entitlement and maintainability of the suit filed on behalf of deity has been decided in favour of the plaintiff. In view of the finding recorded on issue nos.1 to 3,the suit was dismissed vide judgment and decree dated 14.12.1992. The plaintiff having felt aggrieved preferred an appeal before the Special Judge, Dacoity Affected Area, and Additional District Judge, Karauli being appeal no.4/1993 which was allowed and the suit filed by the plaintiff respondent has been decreed. Hence, the present second appeal has been filed. I have heard learned counsel for both sides and carefully perused the material available on record. This court while admitting the appeal, framed following substantial questions of law: “(1) Whether the notice to quit in the present case validly determines the tenancy? (2) Whether there was any evidence to hold that the execution of rent note was proved? 4 Re: Question No.(1): In the plaint, it has been stated that the notice to vacate the premises was served on the defendant on 28.9.1978 and cause of action accrued on 26.10.1978. In relation to para 3 and 4 in the written statement only it is stated that para 3 and 4 of the plaint are denied. Ex.-2 is notice dated 25.9.1978. This notice makes a mention that tenancy shall stand terminated on 26.10.1978 or on any other date considered by the defendant in view of the tenancy. Ex.-4 is acknowledgment receipt. It bears two dates; 25.9.1978 and 28.9.1978. PW-1 is Himmatpal. In his statement he has stated that Ex.-2 notice was given and has also proved the postal receipt Ex.-3 and acknowledgment Ex.-4. In relation to notice, nothing has been asked in the cross-examination as to whether it was fulfilling the requirement of Section 106 of the Transfer of Property Act. The contention of the learned counsel for the appellant is that since tenancy was determined on 26.10.1978 and notice was served on 28.11.1978, therefore, it is not as per the requirement of section 106 of the Transfer of Property Act and the suit was liable to be dismissed. I have considered the above submissions. 5 It appears that the learned appellate court on the basis of Ex.-2, 3 and 4 which are notice, postal receipt and acknowledgment respectively recorded its finding that signatures are available on acknowledgment of the defendant, therefore, notice was served and in the absence of statement of post-man also it stands proved that notice was served and issue has been decided in favour of the plaintiff respondent and finding of the trial court has been reversed on this issue. In the instant case, the defendant-appellant has denied tenancy and has claimed the land to be his land.As regards, service of notice on the defendant-appellant is concerned, that was served. Section 106 of the Transfer of Property Act reads thus: “106. Duration of certain leases in absence of written contract or local usage.- (1) In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. 6 (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. A perusal of section 106 of the Transfer of Property Act reveals that a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice from either side, lessor or lessee. The period mentioned in sub-section (1) of Section 106 shall commence from the date of receipt of the notice. The notice shall not be deemed to be invalid only because the period mentioned in the notice was short and the suit is filed after expiry of the periodin the notice. Notice should be in writing and it should be delivered to the party or service should be effected and can also be sent by post. Now, it is to be seen that in the instant case notice Ex.-2 to determine tenancy is dated 25.9.1978 and tenancy therein was determined with effect from 26.10.1978, therefore, it cannot be said that the notice was invalid for the reason that the notice was served on 28.9.1978 which is less than 30 days notice as contended because if the lease is for other than agricultural purpose and on monthly basis time fifteen days notice is required to determine the tenancy by either side, 7 lessor or lessee. Even if the contention of the learned counsel is examined in relation to the notice period being short of 30 days, therefore, it was not a valid notice to determine the tenancy is concerned that notice Ex.-2 is dated 5.9.1978 and served upon the defendant appellant on 28.9.1978 determining the tenancy by 26.10.1978 or any other date considered proper for determining tenancy by the defendant. After service of the notice suit was filed on 2.12.1978 that being the position of facts, it cannot be concluded that notice to quit the tenancy was not a valid notice. In view of the fore-going discussion and the legal position, answer to the question no.1 above is that notice Ex.-2 correctly determines the tenancy. Re: Question No.2: It is contended by the learned counsel that the plaintiff was not able to prove as to when the suit premises was given on rent and further rent note Ex.-1 cannot be said to be a proof in relation to tenancy because the defendant-appellant has denied his signature on the rent note. The evidence led on behalf of the plaintiff was not satisfactory as has been discussed by the learned trial court. It has also been contended that from the evidence of the defendant it has been established that the suit premises was of defendanta-appellant as on moving an application on behalf of deity before Tehsildar, Tehsildar in his order did not find that the land was encroached 8 upon by the defendant-appellant. It is contended that the application moved on behalf of the temple for removing unauthorised construction was rejected. It is also contended that the trial court has properly appreciated the evidence and in the absence of any evidence, the appellate court has committed illegality in recording its finding to the effect that execution of rent-note and signature of the defendant-appellant on the rent-note stood proved. On the other hand, it has been contended that the important aspect which clinches the issue is that an application under Order 41 Rule 27 CPC was moved before the learned appellate court along with certified copy of the plaint filed by the defendant against the plaintiff. The suit was filed in the court of Munsiff and Judicial Magistrate, Karauli on 20.3.1976 and when Tehsildar passed the order in favour of defendant- appellant that he did not encroach upon the deity's land. The fact that defendant-appellant in the suit filed by him in Munsiff court, Karauli admitted that he was tenant of the deity, therefore, defendant-appellant by concealing facts obtained order from Tehsildar in his favour. It is further contended that the admission of the appellant in his plaint was enough to prove that he had occupied the suit premises as tenant of the diety. It is also contended that the learned appellate court did not find statement of defendant appellant as trust-worthy and on the basis of documents submitted along with application 9 under Order 41 Rule 27 CPC which was allowed by the appellate court found that the defendant-appellant was tenant. I have considered the submissions made before me. It is correct that during the course of trial certain documents which were relevant for the just decision of the case could not be filed but on appeal being preferred by the plaintiff, certified copies of the plaints, written statements etc. were taken on record and in rebuttal the defendant appellant also filed copy of the patta granted to him by Gram Panchayat. It stands established on the basis of the documents submitted along with application under Order 41 Rule 27 CPC that the defendant appellant claimed himself to be the tenant of the deity. PW-1 Himmatpal who is general power of attorney holder of the deity has proved the rent-note Ex.-1 and PW-3 has also proved the rent note. PW-1 has stated that in his presence defendant Chauthilal has signed on the rent-note. Mere denial to signature is not enough. The learned appellate court on the basis of the documents found that the signature of Chauthilal was on the rent note Ex.-1. Chauthilal defendant-appellant has filed suit in the Munsiff Court, Karauli in the year 1976 and claimed himself to be a tenant of the plaintiff then how he could deny the relation-ship between him and plaintiff as tenant and landlord. That being the position of facts, I do not find any merit in the contentions raised by the learned counsel for the 10 appellant. In view of above discussion, answer to the question no.2 is that there is enough evidence available on record to hold that the rent-note was executed and was proved by cogent and reliable evidence. In view of fore-going discussion and answer to the question nos. 1 and 2 above, the appeal being devoid of merit is liable to be dismissed. In the result, this second appeal is dismissed. .(S.P.PATHAK) J. bblm