Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 390 (RAJ)

Mohan Lal v. Dhanna Lal

2011-02-21

NARENDRA KUMAR JAIN

body2011
JUDGMENT : Narendre Kumar Jain, J. 1. Heard learned counsel for the parties. 2. Plaintiff-respondent Dhanna Lal filed a suit for possession of the disputed property against defendant-appellant in the Court of Civil Judge (Junior Division) Kishangarh pleading therein that tenancy of the defendant was terminated vide notice dated 14.02.2007 (Exhibit-2), which was sent to him through registered post, but he refused to accept the same, therefore, it was returned back with the endorsement "refused to accept." Since, the defendant did not hand over the possession of the suit premises, therefore, present suit was filed by the plaintiff-respondent. 3. The suit was contested by the defendant by filing written statement pleading therein that the notice was not received by him. Learned trial court framed seven issues. Both the parties led oral and documentary evidence. Trial court after considering the evidence on record, decreed the suit vide judgment dated 11.12.2008. Being aggrieved with the same, an appeal was preferred by the defendant, but the same was dismissed vide judgment and decree dated 19.01.2010. Hence, this second appeal has been preferred on behalf of the defendant. 4. Submission of learned counsel for the appellant is that both the courts below committed illegality in decreeing the suit without considering the fact that tenancy of the appellant was not terminated by giving notice under Section 106 of the Transfer of Property Act. He submitted that notice was never received by the defendant, therefore, it should have been presumed that tenancy of the appellant was not terminated, therefore, the suit could not have been decreed. Learned counsel for the appellant further argued that a similar Second Appeal No. 196/2010 has also been admitted, therefore, this appeal may also be admitted. 5. Learned counsel for the respondent argued that tenancy of the appellant was terminated by valid notice (Exhibit-2), which was sent through registered post and postal receipt thereof is Exhibit-3 and original registered envelop is Exhibit-4. Since the appellant refused to accept the notice, therefore, both the courts below rightly relied upon the plaintiff's evidence and rightly decreed the suit. He further submitted that so far as Second Appeal No. 196/2010 is concerned, the same is based on separate pleadings and separate evidence and the defendant is also different, therefore, it cannot be said that present case is connected with that second appeal. 6. He further submitted that so far as Second Appeal No. 196/2010 is concerned, the same is based on separate pleadings and separate evidence and the defendant is also different, therefore, it cannot be said that present case is connected with that second appeal. 6. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by both the courts below in decreeing the suit. 7. So far as order admitting the Second Appeal No. 196/2010 is concerned, the learned counsel for the appellant admitted that pleading in that case is different, separate evidence has been recorded in that case, therefore, that case is distinguishable from the present case. Therefore, admission of Civil Second Appeal No. 196/2010 is not material or relevant in the present case. 8. Learned counsel for the both the parties admitted that provisions of Rent Control Act are not applicable in the Village where the disputed property is situated, therefore, only requirement as per law is to terminate the tenancy by serving a notice under Section 106 of the Transfer of Property Act, before filing the suit for possession. Parties also admitted that tenancy was monthly tenancy, therefore, as per provisions of law, only 15 days notice was required to be served. The only dispute in the present case is whether notice, Exhibit-2, was served upon the defendant or not. 9. As per submission of learned counsel for the defendant-appellant, the notice was not received by the appellant, therefore, it was not served upon him, whereas as per submission of learned counsel for the respondent, it was legally served upon the appellant. Both the courts below, after appreciation of evidence of both the parties, recorded finding while deciding Issues No. 1 and 5 that tenancy of the defendant was legally terminated and the plaintiff is entitled to get the possession of the suit property. 10. During course of arguments, learned counsel for the both the parties referred certified copies of the statements of both the parties. Although, re-appreciation of evidence is not permissible in second appeal, but for my satisfaction, I again examined the statements of parties, particularly the statements of P.W. 1, Dhanna Lal and D.W. 1, Mohan Lal. P.W. 1, Dhanna Lal in para 5 of his affidavit has stated that a legal notice dated 14.02.2007 terminating the tenancy of the defendant was sent on 15.02.2007. P.W. 1, Dhanna Lal in para 5 of his affidavit has stated that a legal notice dated 14.02.2007 terminating the tenancy of the defendant was sent on 15.02.2007. The defendant refused to accept the said notice on 19.02.2007. It is relevant to mention that a long cross-examination was made by learned counsel for the defendant from the plaintiff, Dhanna Lal, P.W.1, but no question was put to him in his cross-examination about notice whether it was sent to the defendant or not. Exhibit-2 is the copy of notice and postal receipt of it is Exhibit-3 and original registered envelop containing word, "Refused" is Exhibit-4. Nothing is there in the cross-examination of P.W.-1, Dhanna Lal about it. 11. D.W. 1, Mohan Lal, the defendant, in his cross-examination specifically admitted as under:- ^^;g lgh gS fd /kUukyky us eq>s nqdku [kkyh djus dk uksfVl fn;k] ysfdu eSaus ugha fy;kA** 12. The above admission of the defendant makes it clear that a valid notice was sent to the defendant terminating his tenancy. 13. After considering all the facts and circumstances of the case, I find that finding recorded by both the courts below cannot be said to be perverse or illegal, so as to interfere with the same in second appeal under Section 100 C.P.C. 14. No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine.