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2018 DIGILAW 1560 (RAJ)

Lrs. of Devraj v. Loknath

2018-07-24

ARUN BHANSALI

body2018
JUDGMENT : ARUN BHANSALI, J. 1. This appeal is directed against the judgment and decree dated 6.4.2018 passed by the Additional District Judge, Anoopgarh, Sriganganagar ('the First Appellate Court'), whereby, the appeal filed by the appellant against the judgment and decree dated 23.5.2012 passed by the Presiding Officer, Gram Nayalaya, Anoopgarh, Sriganganagar ('the trial court') has been rejected. 2. The appellant-plaintiff filed a suit for eviction based on provisions contained under Section 13 of the Rajasthan Premises Control of Rent and Eviction Act, 1950 ('the Act of 1950') on the ground of default and bonafide o necessity. 3. The suit was contested by the defendants. 4. After evidence was led, the trial court while deciding the suit, came to the conclusion that the provisions of the Act of 1950 were not applicable to the premises in question and also came to the conclusion that as tenancy of the defendants has not been determined by issuing notice under Section 106 of the Transfer of Property Act, 1882 ('the T.P. Act'), the suit for eviction was not maintainable and consequently, dismissed the same. 5. Feeling aggrieved, the appellant filed first appeal before the First Appellate Court. The First Appellate Court dittoed the finding of the trial court and dismissed the appeal. 6. It is submitted by learned counsel for the appellant that merely because notice under Section 106 of T.P. Act was not issued, the suit could not have been dismissed by the trial court. It was submitted that no objection in this regard was taken by the defendants in the written statement and that once the suit was filed, the same was notice enough and, therefore, the finding of the two courts below deserves to be quashed and set aside. 7. I have considered the submissions made by learned counsel for the appellant and have perused the material available on record. 8. So far as the issue of not raising objection in the written statement is concerned, the aspect on which the trial court and the First Appellate Court have decided the case pertains to the jurisdiction of the case, which could have been raised/decided by the courts at any stage and it is not necessary that the issue, which is legal only, has to be raised in the written statement. 9. 9. So far as the plea raised regarding filing of the suit, itself is required to be taken as notice under Section 106 of the T.P. Act, the same has been noticed only to be rejected as provisions of Section 106 contemplate termination of tenancy before the suit is filed and, therefore, the judgment and decree passed by the courts below do not call for any interference. There is no substance in the appeal, the same is, therefore, dismissed.