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2011 DIGILAW 184 (ORI)

Musaraf Hussain v. Hazara Bibi

2011-03-22

M.M.DAS

body2011
JUDGMENT M.M. DAS, J. — This appeal is pending before this Court since last more than 17 years. The appeal was admitted on 30.06.1993 only on the ground as to whether the lower appellate Court erred in conforming the decree of the trial Court directing the defendant to pay damages at the rate of Rs.10/- per day from 01.01.1987 in view of his own finding that the order directing eviction of the defendant from the suit property could not be sustained for want of notice under Section 106 of the Transfer of Property Act. 2.A cross appeal has been filed by the plaintiff-respondent, which was admitted by order dated 03.02.1995. Facts of the case reveal that the respondent filed the suit for eviction of the appellant from the disputed property which is a homestead property along with a house standing thereon and also claimed recovery of arrear rent and damages. The suit property was a joint property of the family of the respondent. In a previous partition suit, admittedly, the property fell to the exclusive share of the plaintiff. The appellant-defendant in his written statement though admitted that he is a tenant over the suit land but pleaded that the decree in the partition suit by which the plaintiff claims to have acquired exclusive title over the disputed property was never put to execution nor acted upon. However, the appellant, being an outsider to the family of the plaintiff-respondent, could not have raised such a plea when he admitted that he is a tenant over the disputed property. The other ground, on which the appellant pleaded that the suit should be dismissed, was that there was no proper termination of tenancy by issuance of notice under Section 106 of the T.P. Act. The learned trial Court framed as many as 9 issues including the issue as to whether the lease is determined for non-payment of rent and setting up title by defendant himself over the suit land. The learned trial Court found that two notices were issued by the respondent-plaintiff terminating the tenancy and claiming vacant possession of the land and the house and the learned trial Court held that the notice dated 16.12.1986, which was sent through the Advocate of the respondent-plaintiff to the appellant-defendant, is admitted to have been received by him, terminated the tenancy and was a valid notice. The learned trial Court recorded that the defendant admitted to have received the said notice dated 16.12.1986 but pleaded that since the said notice was not given by Usman and the legal representatives of the deceased Darghai Mian and Ismile Mian, it is invalid and defective. The learned trial Court while not accepting such contention of the defendant accepted the said notice to be a valid notice under Section 106 of the T.P. Act. 3.The learned lower appellate Court, while dealing with the said contention of the learned counsel appearing for the respondent that it was not necessary for the respondent to give 15 days notice under Section 106 of the T.P. Act, as the tenancy was admitted, has committed an error in recording that no such notice has been proved in this case on behalf of the plaintiff-respondent and has not assigned any reason as to why finding of the learned trial Court in this regard should be reversed. As a matter of fact plaintiff’s averment in the plaint that by the notice dated 16.12.1986, he terminated the tenancy and demanded vacant delivery of possession was admitted by the defendant to have been received by him. It is trite law that a fact admitted need not be proved. 4.Be it mentioned that the learned trial Court decreed the said suit of the plaintiff-respondent for eviction and for arrear of rent as claimed and damages and the second appeal as stated earlier has been admitted on the ground that the learned lower appellate Court having found that the notice under Section 106 was not served in accordance with law whether the learned appellate Court could have confirmed the decree with regard to daily damages. As I find that the learned appellate Court could not have reversed the finding of the learned trial Court with regard to the validity of the notice under Section 106 of the T.P. Act and, therefore, could not have reversed the decree with regard to eviction, the question of law on which the second appeal is admitted does not arise in this appeal and the cross appeal is bound to succeed. 5.On the above analysis, the Second Appeal No.21 of 1993 is dismissed on merit and the cross appeal filed by the respondent is allowed. 5.On the above analysis, the Second Appeal No.21 of 1993 is dismissed on merit and the cross appeal filed by the respondent is allowed. The judgment and decree of the learned trial Court stands confirmed and the judgment and decree passed by the learned lower appellate Court is set aside. The order of stay of the further proceedings in Execution Case No.20 of 1993 pending before the learned Civil Judge (Sr. Division), Panposh passed on 03.02.1995 in Misc. Case No.613 of 1994 stands vacated and the executing Court shall proceed in the said Execution Case in accordance with law to conclude the same as expeditiously as possible. In the circumstances, however, there shall be no order as to cost. Order accordingly.