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2018 DIGILAW 1266 (RAJ)

Kamla Devi Pareek v. Rajendra Oswal

2018-05-14

DINESH MEHTA

body2018
JUDGMENT : DINESH MEHTA, J. 1. The preset appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants-defendants against the judgment and decree dated 13.09.2017 passed by the learned Additional District Judge, Merta (hereinafter referred as the “Appellate Court”) in Civil Appeal Decree No. 57/2015, whereby the judgment and decree dated 20.11.2010 passed by the learned Civil Judge (Junior Division), Merta (hereinafter referred as the “Trial Court”) in Civil Original Suit No. 99/2003, decreeing the suit of the plaintiffs, has been affirmed. 2. The requisite facts for the purpose of deciding the present second appeal are that the plaintiffs (respondents No. 1 to 3 herein) had filed the suit for taking possession of the residential house in question, after serving a notice under Section 106 of the Transfer of Property act. 3. On the basis of the pleadings of the parties, the learned Trial Court had framed the following five issues:- ^^¼1½ vk;k oknhx.k Áfroknhx.k la[;k 1 o 2 ls tqykbZ 2003 ls p<+k fdjk;k ÁkIr djus ds vf/kdkjh gS \ oknhx.k ¼2½ vk;k Áfroknhx.k la[;k 1 o 2 dh fdjk;snkjh tfj;s uksfVl fnukad 31-7-2003 dks lekIr dj nh \ oknhx.k ¼3½ vk;k oknhx.k Áfroknhx.k la[;k 1 o 2 ls feu ÁksfQVl ds 2000@& :i;s Áfrekg ls ÁkIr djus ds vf/kdkjh gS \ oknhx.k ¼4½ vk;k oknh }kjk Ásf"kr uksfVl fMQsfDVo gS \ Áfroknhx.k la[;k 1 o 2 ¼5½ vuqrks"k \** 4. After discussing the evidence, oral and ocular, in detail, the learned Trial Court decreed the suit of the plaintiffs, vide its judgment and decree dated 20.11.2010 and directed the defendants No. 1 to 6 to hand over the possession of the demised premise to the plaintiffs. 5. The appellants-defendants filed an appeal against the judgment and decree dated 20.11.2010, which too, came to be decided against the appellants-defendants by the learned Appellate Court, vide its judgment and decree dated 13.09.2017. 6. Mr. Trilok Joshi, learned counsel for the appellants-defendants, oppugning the judgments and decree under consideration, submitted that the notice under Section 106 of the Transfer of Property Act served by the plaintiffs was defective, inasmuch as the tenancy of the defendants was scheduled to complete on 26.07.2003; whereas, the plaintiffs had given the notice under Section 106 of the Transfer of Property Act, on 07.07.2003. 7. 7. In relation to the aforesaid contention, the Trial Court has considered the evidence of the parties and held that the notice under Section 106 of the Transfer of Property Act was not defective. 8. Be that as it may, even if it is presumed that the tenancy in question was to be expired on 26.07.2003, the plaintiffs-landlord could very well terminate the tenancy way of serving a notice under Section 106 of the Transfer of Property Act, even before the time of the tenancy was over. 9. In view of the above, no error of facts or law is found in the findings of the Courts below, while deciding the issue with regard to the Notice under Section 106 of the Transfer of Property Act. 10. Mr. Joshi, learned counsel for the appellants further contended that the suit in question had been filed by three plaintiffs, namely, Rajendra, Sumermal and Madhubala; whereas, the plaintiff No. 1 Rajednra had produced the power of attorney of other plaintiffs, namely, Sumermal and Madhubala, after the date of filing of the suit. Learned counsel for the appellants contended that in view of the inconsistency narrated above, the suit, as filed and framed, was incompetent, on the date of filing. 11. In response to the above argument, Mr. Salil Trivedi, learned counsel counsel for the respondents-plaintiffs contended that reason of filing the power of attorney at a later point of time, has been mentioned in para-2 of the plaint, which remained unrebutted and undisputed. He further argued that this question had neither been set up in the suit proceedings, nor had any issue been framed in this regard, hence, the question, as sought to be posed by Mr. Joshi, at the stage of second appeal, cannot be permitted to be raised, in view of the embargo contained u/Order XLI Rule 2 of the Code of Civil Procedure. 12. In considered opinion of this Court, the question, as proposed by Mr. Joshi, at the stage of second appeal, cannot be raised, when the same was never raised before the Courts below. 13. In view of the aforesaid fact-situation, the present second appeal involving no substantial question of law, is rejected. No orders as to costs.