1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 331 OF 2007 SECOND APPEAL NO. 331 OF 2007 SECOND APPEAL NO. 331 OF 2007 WITH CIVIL APPLICATION NO. 661 OF 2007 Shri Sarjerao Ananda Nimalkar ... Appellant (Org. Defendant) Versus Shri Balaso Mahadeo Koli ... Respondent (Org. Plaintiff) Mr. N.J.Patil, Advocate, for the appellant. Mr. Amit Borkar, Advocate, for the respondent. CORAM: J.H.BHATIA,J CORAM: J.H.BHATIA,J CORAM: J.H.BHATIA,J. DATED: 24th October, 2008. DATED: 24th October, 2008. DATED: 24th October, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. The respondent is the original plaintiff. He filed Regular Civil Suit No.244 of 2002 for recovery of 2 possession and arrears of rent against the defendant/appellant. According to him, the defendant was occupying the suit premises comprising southern side two rooms from the house situated on CTS No.2162 (Grampanchayat NO.585). The suit premises are situated withinin the limits of Village Hupari, Taluka Hatkanangale, District Kolhapur. According to the plaintiff, the defendant was inducted as a tenant on monthly rent of Rs.400/- per month. Since March, 1999, the defendant has failed to pay the rent. Not only this, the defendant filed Regular Civil Suit No.158 of 2002 seeking injunction against the plaintiff-landlord claiming title over the property. Therefore, the plaintiff issued a notice on 21.5.2002 to the defendant by Registered Post A.D. terminating the tenancy with effect from 30.6.2002. The notice was returned back to the plaintiff with postal endorsement "Not claimed". Thereafter the plaintiff filed suit for possession and arrears of rent. The defendant contended that in 1970, there was some open land with one hut and he had begun to reside there since 1970. Later on, the hut was demolished and he constructed a house spending Rs.50,000/-. No objection was taken by the plaintiff to that construction. Since then the defendant claims to be in possession as owner of the house and he claims to have become owner by adverse possession. He denied the 3 relationship of landlord and tenant and also denied the liability to pay the arrears of rent. 3. The trial Court framed certain issues and rejected the contention of the defendant and came to conclusion that the defendant was a tenant in the suit premises. The trial court also fixed the rent of Rs.50/- per month. In the result, the trial Court passed the decree of eviction and possession and for payment of Rs.1800/- being the arrears of rent for three years before filing the suit. The trial Court also declared the standard rent to be Rs.50/- per month. Being aggrieved by the said decree, the defendant preferred Regular Civil Appeal No.48 of 2004 which was re-numbered as Regular Civil Appeal No.149 of 2005. 4. After hearing the parties, the learned lower appellate Court came to conclusion that the trial Court had erred in proceeding with the matter as if the Bombay Rent Act was applicable because the property is situated within the area of Grampanchayat and the Rent Act is not applicable to the same. However, the appellate Court also held that the defendant was inducted as a tenant in the suit premises and as per his own admission he had agreed to pay rent at Rs.50/- per month. In absence of any documentary evidence about the agreed rent, the 4 learned lower appellate Court relied on the admission of the defendant about the rate of rent and accordingly modified the decree in favour of the plaintiff. Therefore, the defendant has preferred the Second Appeal before this Court. 5. The learned Counsel for the defendant-apellant pressed upon the mistake committed by the trial Court in proceeding under the Bombay Rent Act. I find no substance in this contention because the said mistake has already been rectified by the lower appellate Court. Both the Courts below have given concurrent finding that the defendant was inducted as a tenant in the suit premises and that he had failed to prove his adverse possession. The learned Counsel for the appellant contended that the notice of termination of tenancy was not properly served on the defendant. The first appellate Court noted that the notice was issued by the plaintiff by Registered Post A.D. on 21.5.2002 terminating the tenancy with effect from 30.6.2002. The envelope containing that notice was returned by the postal authorities with the remark that intimation was given to the plaintiff on 24.5.2002 and he had refused to accept the notice and therefore it was returned as "not claimed". In view of this, I do not find any fault with the service of notice. When the notice was sent to 5 the defendant at his correct address and the Postal authorities returned the same tothe sender endorsing that the defendant had refused to accept the notice and that the intimation was given to him and still he had not claimed the notice from the post office, it must be held that notice was duly served on him. As the Rent act is not applicable, the case is covered under Section 106 of the Transfer of Property Act. Fifteen days notice for termination of monthly tenancy is as per law. It is material to note that in the written statement, the defendant had not raised any objection to the service of notice because he had taken the plea of adverse possession. The question about service of notice was raised for the first time during arguments before the Courts below. That argument has been rightly rejected by both the Courts below. 6. In view of the facts noted above and the concurrent findings, I find no substantial question of law involved in the present Appeal. Therefore, the Appeal stands dismissed. 7. In the result, the Civil Application also does not survive and stands dismissed. 6 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)