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2015 DIGILAW 1626 (RAJ)

Birdi Chand v. Aziz Mohammed

2015-09-04

ARUN BHANSALI

body2015
JUDGMENT 1. - This Second Appeal is directed against the Judgment and Decree dated 29.11.2013 passed by the Civil Judge (Senior Division), Shahpura, District-Bhilwara and the appellate Judgment and Decree dated 23.4.2015 passed by the Additional District Judge, Shahpura, District-Bhilwara, whereby the suit filed by the respondent for eviction and mesne profit has been decreed and the Appeal filed by the appellant has been dismissed respectively. 2. The respondent filed a suit for eviction from the suit shop with the averments that by way of notice dated 25.10.2005 under Section 106 of the Transfer of Property Act, 1882 ('the Act'), the tenancy has been terminated w.e.f. mid night of 1.12.2005 and therefore, the plaintiff was entitled for vacant possession of the suit property and mesne profits at market rate. 3. The suit was resisted by the appellant-defendant inter alia on the ground that the tenancy was not properly terminated and the plaintiff was not entitled for grant of mesne profit. 4. After hearing the parties, the Trial Court came to the conclusion that the tenancy was properly terminated and that the respondent-landlord was entitled for possession of the suit property. The Appeal filed by the appellant was rejected by the First Appellate Court. 5. It is submitted by learned Counsel for the appellant that both the Count below were not justified in coming to the conclusion that the tenancy was properly terminated, inasmuch as, the suit property was let-out in the year 1977 by three lessors to the appellant and the notice in question was issued only by two persons, both being the legal representatives of one of the lessor and therefore, the notice was not proper. 6. It was further submitted that during the pendency of the suit, Smt. Halima Begum, one of the plaintiffs expired and application filed under Order 22, Rule 3 C.P.C. was rejected by the Trial Court and therefore, the suit as a whole would abate and therefore, the Trial Court was not justified in decreeing the suit filed by the respondent. 7. Learned Counsel for the respondent-Caveator contested the submissions C made by learned Counsel for the appellant on the ground that the issue pertaining to improper notice on the ground that the same was not issued by three original lessors was not raised before two Courts below. 7. Learned Counsel for the respondent-Caveator contested the submissions C made by learned Counsel for the appellant on the ground that the issue pertaining to improper notice on the ground that the same was not issued by three original lessors was not raised before two Courts below. It was submitted that after letting out the property in the year 1977, the suit property came in the ownership of the plaintiffs and they had made specific averment in the suit in this regard, which was not denied by the appellant, no question regarding the ownership was even asked in the cross-examination and therefore, once the plaintiffs only were the owners of the suit property, merely because originally the property was let out by three persons, cannot be a reason for issuance of notice by all the three lessors. 8. It is further submitted that the Plaintiff No. 1-Smt. Halima Begum and Plaintiff No. 2-Aziz Mohammed were both mother and son and merely because Smt. Halima Begum died during the pendency of the suit, it cannot be said that the suit would abate as Aziz Mohammed himself was one of the legal representatives and therefore, there is no substance in the Appeal and the same deserves to be dismissed. 9. I have considered the submissions made by learned Counsel for the parties and have perused the material placed on record. 10. It is true that the deficiency in notice sought to be pointed out in the present Appeal was not raised by the appellant before the two Courts below. 11. A look at the assertion made in the plaint as pointed out by learned-Counsel for the respondent, it is apparent that the plaintiffs claimed themselves to be owners-landlords of the property and the said aspect was admitted by the appellant-defendant. Nowhere in the written statement, the right of the plaintiff to file suit was challenged. 12. In view thereof, the mere fact that originally property in question was let out to the appellant by three persons, it cannot be said that issuance of notice by lie subsequent owners-landlord of the property would not be proper. 13. Nowhere in the written statement, the right of the plaintiff to file suit was challenged. 12. In view thereof, the mere fact that originally property in question was let out to the appellant by three persons, it cannot be said that issuance of notice by lie subsequent owners-landlord of the property would not be proper. 13. So far as the submissions regarding abatement of the suit is concerned, it snot in dispute that both Smt. Halima Begum and Aziz Mohammed being Legal representatives of Gulam Rasool filed the suit for eviction and during the pendency of the suit Smt. Halima Begum died and only Aziz Mohammed remained as plaintiff on record. It is not in dispute that Aziz Mohammed himself would have filed the suit in his individual capacity and once Aziz Mohammed as me of the Legal Representatives of Smt. Halima Begum was already on record, it cannot be said that the suit as filed would abate on account of death of Smt. Halima Begum. 14. In view of above discussion, no substantial question of law arise for consideration in this Second Appeal. There is no substance in the Appeal, the same is, therefore, dismissed.Appeal dismissed. *******