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2008 DIGILAW 609 (ORI)

Debi Dayal Sharma v. Ramesh Kumar Agarwala

2008-07-30

A.S.NAIDU

body2008
JUDGMENT :- This Second Appeal was admitted on the following substantial question of law :- i) Whether the respondents required to serve notice under Section 106 of Transfer of Property Act before filing the suit for eviction? and ii) Whether the appellant can take such plea of non-service of notice without there being specific pleading in that regard in the written statement ? The original respondent No. 1 late Ramesh Kumar Agarwalla and respondent No. 2 Ashok Kumar Agarwalla as plaintiff had filed T. S. No. 131 of 1990 for eviction of the original appellant-Debi Dayal Sharma from the suit house and realization of arrear rent. 2. According to the plaintiffs the house in question was a part and parcel of their ancestral house, and was let out to the defendant initially on a monthly rent of Rs. 100/- which was subsequently enhanced to Rs. 165/-. According to the plaintiffs the defendant was regularly paying rent till 1982, but then thereafter in spite of demands, failed to do so. The further case of the plaintiffs was that the house, by afflux of time had become dilapidated and they needed the same for their, personal use. Consequently the suit was filed. 3. The defendant appeared and filed written statement denying the ownership of the plaintiffs over the suit house. He stated that neither the plaintiffs had inducted him nor were they the landlords. According to the defendant one Kalabati, wife of Jagannath, was the owner of the suit house and the suit was liable to be dismissed. 4. On the basis of pleadings of the parties, the trial Court framed eight issues for decision in the suit. The plaintiffs got two witnesses examined and the defendant four. A number of documents were also exhibited by both sides. 5. In course of hearing the defendant took a plea that notice mandatorily required under Section 106 of Transfer of Property Act having not been served on him, the suit was liable to be dismissed. 6. The trial Court after discussing the evidence in extenso came to the conclusion that in absence of any pleading to that effect in the written statement the suit was maintainable and thus while directing the defendant to vacate the house also directed him to pay a sum of Rs. 2,620/- towards arrear rent besides future rent and accordingly decreed the suit. 2,620/- towards arrear rent besides future rent and accordingly decreed the suit. Being aggrieved by the decree of the trial Court the defendant filed T.A. No. 38 of 1993 in the Court of the learned District Judge, Balangir. The appellate Court also after discussing the evidence and analyzing the points of law raised confirmed the findings of the trial Court and dismissed the appeal. The said confirming decision of the lower appellate Court is impugned in this Second Appeal. 7. The only question, urged before this Court is whether without issuing a notice under Section 106 of the Transfer of Property Act the suit was maintainable. The said question of law is no more res integra. In the case of Bijili alias Pundhini Luhara v. Gouri Sankar Misra, reported in (1981) 52 CLT 389 : (AIR 1982 NOC 87) this Court held that want of notice under Sections 106 and 114 (9) of the Transfer of Property Act had to be specifically pleaded and in the absence of such pleading in the written statement, the question could not be permitted to be raised at a later date. The Allahabad High Court in the case of Abdul Qawi v. Mst. Sabira Bibi, reported in AIR 1984 NOC 78 (All) held that defence as to want of valid notice is not available to a person who denies landlord's title to property and also relationship of landlord and tenant between the parties. 8. In the case at hand perusal of the pleadings clearly reveal that the property in question was the ancestral joint family property and the plaintiffs were the co-sharers. They had filed the suit for eviction and arrear rent. The plea of the defendant all through was that the plaintiffs were not his landlords and thus there was a denial of landlords title from the very beginning. No plea whatsoever has been taken with regard to non-issuance of any notice under Sections 106 and 114 (9) of the Transfer of Property Act. The Courts below after going through the materials available have recorded the findings that want of notice had to be pleaded and that in absence of such plea in the written statement the question could not be permitted to be raised at a later stage. This Court also went through the written statement. The Courts below after going through the materials available have recorded the findings that want of notice had to be pleaded and that in absence of such plea in the written statement the question could not be permitted to be raised at a later stage. This Court also went through the written statement. In fact no plea was taken in the written statement to the effect that notice under Sections 106 and 114 (9) of the Transfer of Property Act was served. That apart maintainability of the suit without notice for termination of the tenancy was not an issue framed by the trial Court. If the question of notice had been raised, the plaintiffs could have proved service of the notice. The plea of non-service of notice is liable to be waived. Where such a plea has not been taken and on the basis of general title, plaintiffs can succeeds in their action. That apart, it appears that Kalabati was a co-owner of the plaintiffs, it is well settled that a co-owner alone can institute a suit for recovery of possession. 9. For the aforesaid discussions, this Court finds no reason to interfere with the confirming decision of the lower appellate Court. The Second Appeal is devoid of merit and is dismissed. No costs. Appeal dismissed.