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2015 DIGILAW 503 (HP)

Arvind Verma v. A. C. Shandil

2015-05-08

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. Defendant Arvind Verma is in second appeal before this Court. He is aggrieved by the judgment and decree dated 29.7.2004 passed by District Judge, Shimla whereby the judgment and decree passed by learned Sub Judge Court No. 1, Shimla in Civil Suit No. 98/1 of 2001 has been affirmed and the appeal dismissed. 2. The subject matter of dispute in the present lis is a house constructed over a portion of Khasra No. 664 as per the entries in the Jamabandi for the year 1989-90 Ex. PW-1/A. The plaintiff has been recorded owner of the land and the house constructed thereon as per the entries reflected in Ex. PW-1/A. Defendant was inducted as tenant in the house on payment of rent at the rate of Rs. 4,500/- per month. The house was required by the plaintiff for his own use and as the defendant also failed to pay the rent w.e.f. 1.11.2000, therefore, the plaintiff terminated the tenancy w.e.f. 31.8.2001 under Section 106 of the Transfer of Property Act by serving the defendant with notice dated 30.7.2001 Ex. PW-1/C. The defendant was required to pay the due and admissible rent at the rate of Rs. 4,500/- per month from 1.11.2000 till 31.8.2001 and to hand over the vacant possession of the house in question on 1.9.2001. He, however, failed to do so. Hence, the suit for recovery of arrears of rent to the tune of Rs. 57,510/- together with future interest at the rate of 12% per annum and decree for his ejectment from the suit house with a further direction to hand over the vacant possession thereof to the plaintiff. 3. The defendant in written statement has raised preliminary objections qua the maintainability of the suit, the same bad for non-joinder of necessary parties, estoppel and that since the tenancy has not been terminated by issuance of legal and valid notice, no decree of his ejectment from the suit house can be passed. On merits, it is admitted that the suit house has been rented out to him by the plaintiff at the monthly rent of Rs. 4,500/-, however, he has paid the rent due and admissible till 28.2.2000. He is ready and willing to pay the rent for the period subsequent thereto also, however, it is the plaintiff, who refused to receive the same under proper receipt. 4,500/-, however, he has paid the rent due and admissible till 28.2.2000. He is ready and willing to pay the rent for the period subsequent thereto also, however, it is the plaintiff, who refused to receive the same under proper receipt. The suit has, therefore, been sought to be dismissed. 4. In replication, the plaintiff has denied the contentions raised by the defendant being wrong and reiterated his case as set out in the plaint. The pleadings of the parties has resulted in carving out the following issues: 1. Whether the plaintiff is entitled to recover the suit amount with interest if so to what extent? OPP 2. Whether the plaintiff is entitled for the possession of suit premises as alleged? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Whether the plaintiff is estopped to file the present suit on account of act, conduct and deed? OPD 6. Whether the tenancy of the defendant has not been terminated? OPD 7. Relief. 5. The parties were put to trial on all the issues so framed. The plaintiff has himself stepped into the witness-box as PW-1. He has also produced in evidence a copy of Jamabandi for the year 1989-90 Ex. PW-1/A, Map of the house Ex. PW-1/B, Copy of the notice Ex. PW-1/C, postal receipt Ex. PW-1/D, reply to the notice submitted by the defendant Ex. PW-1/E and letter, Ex. PW-1/F, he addressed to defendant for vacation of the suit house, mark 'X' and 'Y' certificates issued by Patwari, Patwar Circle, Beolea, Tehsil and District Shimla and Up-Pradhan, Gram Panchayat, Pujarali, Beolea, Shimla-9 respectively, to show that it is he, who is owner-in-possession of the suit house. 6. The defendant has also stepped in the witness-box as DW-1. Learned trial Court on appreciation of the evidence available on record has decreed the suit for the recovery of Rs. 57,510 towards the arrears of rent and held entitled to recovery of rent w.e.f. 1.9.2001 to 30.6.2003 at the rate of Rs. 4,500/- along with interest at the rate of 12% per annum from the date of judgment till the entire amount is realized. The decree for possession of the suit house depicted in the map Ex. PW-1/B was also passed in favour of the plaintiff. 7. 4,500/- along with interest at the rate of 12% per annum from the date of judgment till the entire amount is realized. The decree for possession of the suit house depicted in the map Ex. PW-1/B was also passed in favour of the plaintiff. 7. Learned lower appellate Court in slight modification of the judgment and decree passed by the trial Court though affirmed the same, however, the rate of interest was reduced from 12% per annum to 9% per annum and the defendant was entitled to set off a sum of Rs. 13,500/- paid towards arrears of rent during the pendency of the suit. 8. The defendant is now in second appeal. The complaint is that learned lower appellate Court has felled into error while holding that the notice served upon the defendant is legal and valid. In the absence of the detail as to when and for what period the tenancy continued and on which date the notice was served upon him, no decree for his ejectment and delivery of vacant possession of the suit house could have been passed. In the absence of specific findings that the tenancy stand terminated, no decree for ejectment of the defendant could have been passed. The objection that suit was bad for non-joinder of necessary parties, is also not taken into consideration. The fact that the plaintiff did not supply the copy of document filed along with the plaint is erroneously ignored. The judgment and decree under challenge, therefore, has been sought to be quashed and set aside. 9. The appeal has been admitted on the following substantial questions of law: 1. Whether there has been a valid termination of the tenancy vide notice Ex. PW-1/C? 2. Whether the findings, as recorded by both the Courts below against the appellant are vitiated on account of mis-reading, mis-appreciation and misconstruction of the pleadings of the parties, as well as oral and documentary evidence on record? 10. The present is a case of concurrent findings. As per the settled legal principle, in a second appeal, findings of fact, even may be erroneous, should not normally be interfered with unless and until found to be recorded on the basis of assumptions, conjectures and it appears to the High Court that both the Courts below have misdirected themselves in appreciating the question of law. As per the settled legal principle, in a second appeal, findings of fact, even may be erroneous, should not normally be interfered with unless and until found to be recorded on the basis of assumptions, conjectures and it appears to the High Court that both the Courts below have misdirected themselves in appreciating the question of law. The settled legal proposition, therefore, is that High Court should not interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts. 11. Coming to the legal questions supra, the suit house is situated in an area beyond the jurisdiction of Municipal Corporation, Shimla. In the matter of termination of the tenancy, the following conditions contained under Section 106 of the Transfer of Property Act are applicable: "106. Duration of certain leases in absence of written contract or local usage:- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either must sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." 12. The suit house has not been rented out to the defendant for agricultural or manufacturing purposes and rather for residential purposes hence for the purpose of termination of the tenancy covered by the second part of sub-section (1) of Section 106 of the Act. In the absence of a contract to the contrary, the present is a case where the tenancy has to be treated from month to month basis. The same, therefore, can be terminated either by the lessor or lessee by serving upon 15 days' notice. The period of 15 days, of course shall commence from the date of receipt of the notice as provided under sub-section (2) of Section 106 of the Act. In a situation where the period of notice fell short of the period specified under sub-section (1), the notice cannot be treated to be invalid in case the suit or proceedings initiated against the tenant after the expiry of the period so prescribed. 13. In the case in hand, notice Ex. PW-1/C is dated 30.7.2001. Postal receipt Ex. PW-1/D reveals that the same was booked by the postal department for the destination as per address on 2.8.2001. Reply, Ex. PW-1/E to the notice is dated 28.8.2001, meaning thereby that the notice was duly received by the defendant well before 31.8.2001. 14. True it is that no evidence is forth coming as to when the notice actually was received by the defendant. In view of the reply thereto is dated 28.8.2001, it can reasonably be believed that it was 15 days notice, hence legal and valid. Had it been not so, he could have produced in evidence the record from the post office qua the date of delivery of the notice to him. When the tenancy is from month to month basis and the defendant was duly served with the notice under Section 106 of the Transfer of Property Act, therefore, the tenancy stands rightly terminated on 31.8.2001. The defendant was required to hand over the vacant possession of the suit house to the plaintiff on 1.9.2001. He, however, failed to do so. Both Courts below, therefore, have not committed any illegality or irregularity in decreeing the suit for possession of the suit house in favour of the plaintiff and against the defendant. The defendant was required to hand over the vacant possession of the suit house to the plaintiff on 1.9.2001. He, however, failed to do so. Both Courts below, therefore, have not committed any illegality or irregularity in decreeing the suit for possession of the suit house in favour of the plaintiff and against the defendant. The contentions that there is no finding in the judgment and decree under challenge qua termination of the tenancy raised by learned Senior Advocate representing the appellant-defendant are without any substance as the perusal of the judgment as a whole makes it crystal clear that both Courts below have ordered to terminate the tenancy. 15. The self serving statement of the defendant that he has paid the due and admissible rent as on 28.2.2001 cannot be believed to be true without any supporting material and also that this part of his statement has been denied with equal force by the plaintiff while in the witness box. Therefore, qua the decree for recovery of arrears of rent also the defendant cannot be said to be aggrieved in any manner whatsoever. As regards the interest, the same has already been reduced by learned lower appellate Court from 12% per annum to 9% per annum. As regards Rs. 13,500/- paid by the defendant towards arrears of rent during the pendency of the suit, the same has also been ordered to be set off against the defendant by the lower appellate Court. Therefore, on this score also no interference by this Court is warranted. 16. The present is also not a case where it can be said that the Courts below have failed to appreciate the evidence in its right perspective and mis-read, mis-construed, or mis-interpreted the same. The evidence produced by the plaintiff is comprising his own statement and also documentary evidence viz, copy of Jamabandi Ex. PW-1/A, map of the suit house Ex. PW-1/B, copy of notice Ex. PW-1/C, postal receipt Ex. PW-1/D, and copy of reply to the notice submitted by the defendant Ex. PW-1/E. On the other hand, the evidence produced by the defendant is his own statement. The copy of the Jamabandi makes it crystal clear that it is the plaintiff, who is owner-in-possession of the land over which the suit house has been constructed. The map of the house is Ex. PW-1/B, there is no denial thereto. The notice Ex. PW-1/E. On the other hand, the evidence produced by the defendant is his own statement. The copy of the Jamabandi makes it crystal clear that it is the plaintiff, who is owner-in-possession of the land over which the suit house has been constructed. The map of the house is Ex. PW-1/B, there is no denial thereto. The notice Ex. PW-1/C being legal and valid terminates the tenancy. It has not been explained as to how and in what manner the evidence so produced has been mis-read or misconstrued. Therefore, on this score also it cannot be said that the judgment and decree under challenge is perverse, hence not legally sustainable. 17. The plaintiff was nowhere under an obligation to supply the copies of documents filed along with the plaint. It was rather for the defendant to have inspected the record and obtained the copies of the documents, therefore, the submission qua this aspect of the matter made by learned Senior Advocate are also without any substance. Though it has been urged that decision of few of the issues altogether is not legally permissible, however, without any substance as nothing has come on record as to what prejudice has been caused to the defendant from the decision of issues No. 1 to 3 and 6 and 4 and 5 altogether. It has also not been pointed out as to what were the other material issues, which were required to be framed, however, not framed. Otherwise also, in second appeal, no such question either should be raised or required to be redressed. 18. In view of what has been said hereinabove, no legal question, muchless the substantial questions of law, as formulated in this appeal, arises for adjudication. The judgment and decree under challenge rather is legally and factually sustainable. The same, therefore, is hereby affirmed. 19. For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed. Pending applications, if any, shall also stands disposed of. No order so as to costs.