IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.142 of 2002. Date of decision: 08.12.2011. Moti Ram s/o Shri Babu Ram, s/o Shayam Lal, caste Khatri, r/o village Thana Kalan, Tehsil Bangana, District Una, H.P. … … …Appellant Versus Balwant Singh s/o Sohnu, caste Rajput, r/o Village Thana Kalan, Tehsil Bangana, District Una, H.P. … … …Respondent. Regular Second Appeal under Section 100 of the Code of Civil Procedure. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.K.D. Sood, Advocate. For the Respondent: Mr.N.K. Thakur, Advocate. Dev Darshan Sud,J. This appeal has been admitted on two substantial questions of law on 12.4.2002:- 1. Whether the suit was not maintainable in the absence of all the co-owners who had inherited the property in tenancy of the appellant from Sohnu and the heirs and transferees of Sohnu apart from appellant who had accepted the appellant as tenant and despite the notice and the decree 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 under appeal and had accepted the rent, the plaintiff was entitled to file and continue the suit? 2. Whether a valid notice terminating the tenancy of the appellant had been served and even if served, the same was deemed to have been waived and the plaintiff was estopped from filing the suit on account of the acts, deeds and conduct of the other co-owners who had accepted the appellant as tenant? 2. The appellant is the defendant before the learned trial Court. The plaintiff instituted the suit for possession of a shop consisting of one room and one verandah, situated in Khasra No.3118 at village Thana Kalan, Tehsil Bangana, District Una, H.P. 3. The suit was contested on a number of grounds by the defendant. On the settled issues, the first issue raised was regarding the maintainability of the suit, the second on the joinder or non-joinder of parties, the third was as to whether a valid notice under Section 106 of the Transfer of Property Act has been served or not. 4. On the question of maintainability and joinder/non-joinder of parties, no evidence was led by the defendant-petitioner. On the question as to whether a valid notice had been served under Section 106 of the Transfer of Property Act, the learned trial 3 Court considered the evidence of PW-1 Balwant Singh. Notice Ex.PW-1/A, postal receipt Ex.PW-1/B, AD receipt Ex.PW-1/C were taken into consideration by the Court. In rebuttal the defendant appeared as his own witness and closed his evidence. The Court holds that a valid notice has infact been served on the defendant. These very facts have been agitated before the learned trial Court and re-agitated before the learned appellate Court, which by its judgment rejected the submissions made on behalf of the defendant, appellant herein. The learned appellate Court holds that there is no dispute about the amount of arrears of rent. Such finding has been rendered by the Court under point No.1 holding:- “The facts of the case as mentioned above are not in dispute. Nor in dispute in this appeal is the amount of arrears of rent. Also the validity of notice issued U/S 106 of Transfer of Property Act is not challenged. Mainly what has been contested and argued is the findings of learned trial court with respect to the plea of merger of the tenancy with the ownership of the defendant… … … …. “ Moreover, on the facts and law as considered by the learned appellate Court, I do not find anything contrary which has been placed on the record to show that the findings so arrived at are not in consonance with the settled legal position. 4 5. On the first question, I find that no evidence has been led by the defendant before the Court below. Both the Courts held concurrently against the appellant herein and in second appeal, I do not intend to interfere in these findings. 6. On the second question for consideration regarding the validity of notice, I have already considered the findings of learned appellate Court to the extent that the validity of the notice was not questioned before the learned appellate Court and in these circumstances this question cannot be raised in appeal. 7. I do not find any perversity in the findings of the two Courts below. On the question of service of valid notice also, there is no infirmity as the case has been decided on merits. No question of law much less substantial question of law arises for determination. Appeal is accordingly dismissed. No order as to costs. December 8, 2011. (Dev Darshan Sud) (aks) Judge.