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2015 DIGILAW 3975 (ALL)

Kedar Nath Gupta v. Sanjay Kumar

2015-12-14

SHABIHUL HASNAIN

body2015
JUDGMENT Shabihul Hasnain, J. – Despite sufficient notice, nobody has put in appearance on behalf of the respondent. 2. Sri R.N. Tilhari, learned counsel for the revisionist-plaintiff has shown his willingness to argue the matter, hence this Court proceeds for final hearing as this matter is being listed for hearing today. 3. In short the facts of the case are that the plaintiff-revisionist has filed S.C.C. Suit No. 3 of 2011 against the respondent for arrears of rent, damages and eviction from the house situated in Mohalla Govindbagh, Gudmandi, Tehsil and District Balrampur, claiming himself to be the owner of the house in question. It has been alleged that earlier the father of the respondent was tenant of the house in question, thereafter on his vacating the same, his son respondent became the tenant of the house in question @ Rs.400/-, and since January, 2009 he has paid the rent in spite of demand being made by the plaintiff and filed Regular Suit No.684 of 2010 alleging himself to be the owner of the house in question. For the reason thereof, the tenancy of the respondent has automatically terminated. Thereafter, the plaintiff has sent a registered notice dated 1.6.2011 to the respondent demanding the arrears of rent and damages since January, 2009. Since the respondent has neither paid the rent nor vacated the house in question, hence the S.C.C. Suit has been filed by the plaintiff. 4. The suit was contested by the respondent admitting the tenancy of the house in question and the rate of rent to be Rs.14/- per month and since January, 2009 @ Rs.50/- per month. It has been alleged by the respondent has he has no knowledge about the demand notice being to him. He is making effort to deposit the arrears rent in the Court and the process thereof has completed. 5. After hearing the parties counsel, the Court below has framed following issues : - 1. Whether the respondent is the tenant of the house in dispute @ Rs.400/- per month. 2. Whether the plaintiff has sent statutory notice to the respondent terminating his tenancy before filing the suit. 3. Whether the plaintiff is entitled for arrears of rent amounting to Rs.11,600/- and Rs.2800/- as damages, from the respondent. 4. Whether the plaintiff is entitled for the relief claimed for. 6. 2. Whether the plaintiff has sent statutory notice to the respondent terminating his tenancy before filing the suit. 3. Whether the plaintiff is entitled for arrears of rent amounting to Rs.11,600/- and Rs.2800/- as damages, from the respondent. 4. Whether the plaintiff is entitled for the relief claimed for. 6. The parties has produced oral and documentary evidence in support of their case. 7. The Court below after going through the material on record and hearing the parties counsel, decided issue no. 1 declaring the respondent to be the tenant of the house in question, but since the statutory notice sent by the plaintiff to the respondent, not having been found proved by the Court below, issues no. 2,3 and 4 have been decided against the plaintiff. 8. Sri Tilhari has argued that Issue no. 1, which is to the effect that whether respondent is tenant of the plaintiff @ Rs.400/- as rent per month, has been decided correctly by the lower court, in his favour. On examination of reasoning given by the lower Court, this Court finds that this issue has correctly been decided in favour of the appellant. Moreover, oral evidence led by the plaintiff along with affidavit has been successfully proved that there was relation of land lord and tenant between the parties. 9. So far issue no. 2 is concerned, it has been decided against the land-lord-appellant incorrectly while holding by the lower Court that termination of tenancy by notice was necessary and no notice has been given to the tenant as required under the law. 10. Sri R.N. Tilhari has drawn attention of this Court towards the facts that the respondent-tenant has also filed suit no. 684 of 2010, Sanjay Kumar Gautam v. Surya Pali, wherein he has claimed that he himself is the landlord. Sri Tilhari further says that the tenancy shall come to end by filing of the suit and no further notice for termination of tenancy, is required separately by the Court. In this regard to fortify his argument, Sri Tilhari has referred to Section 111 (g) (2) of the Transfer of Property Act, which reads as under : - 111. Determination of lease.- A lease of immoveable property determines- .......................... ................. ............ (g)(2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 11. Determination of lease.- A lease of immoveable property determines- .......................... ................. ............ (g)(2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 11. Thus, it is very clear that no notice was required to be served upon the respondent-tenant, and this issue has wrongly been decided by the lower Court. Sri Tilhari has rightly argued that the oral evidence led by the plaintiff-landlord has not been considered by the lower Court at all while deciding issue no. 2. In one paragraph after the issue has been framed, it has been clearly mentioned that the oral evidence was led by the landlord but the same has not been considered by the lower Court. On examination, this Court find that there is error of law in deciding the issues. Accordingly, the said finding is not a valid and sound. Thus, this Court is of the considered view that once the respondent-tenant has filed suit no. 684 of 2010, Sanjay Kumar Gautam v. Surya Pali, claiming himself to be the owner of the house in question, no notice was required to be served upon the respondent terminating his tenancy. Thus, issue no. 2 is decided in favour of the plaintiff and against the respondent. 12. So far issues no. 3 and 4 are concerned, no evidence was led by the respondent to show that he has deposited any rent either in the Court or given the same to the landlord. 13. This Court is of the view that since issue no. 2 stands decided in favour of the plaintiff, and no evidence was led by the respondent to show that he has deposited any rent either in the Court or given the same to the landlord, issues no. 3 and 4 also stand decided in favour of the plaintiff and against the respondent. Therefore, the plaintiff is entitled for the arrears of rent, damages and eviction of the respondent from the house in question. 14. In view of the above, this appeal succeeds and is allowed. The judgment and order passed by the Court below dated 31.3.2014 is set aside. The suit filed by the plaintiff is decreed. Consequence to follow. Appeal allowed.