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2019 DIGILAW 2154 (RAJ)

Premshankar v. Ladadevi Gadiya

2019-08-08

P.K.LOHRA

body2019
JUDGMENT P.K. Lohra, J. - Appellant-Defendant has preferred this second appeal aggrieved by judgment & decree dated 03.05.2019, passed by Addl. District Judge, Gulabpura, District Bhilwara (for short, 'learned lower appellate Court'), whereby the learned lower appellate Court has dismissed the appellant's appeal and affirmed judgment and decree dated 29.08.2017, passed by Senior Civil Judge, Gulabpura, District Bhilwara (for short, 'learned trial Court'). The learned trial Court, by its judgment and decree allowed the suit filed by respondent-plaintiff for possession and arrears of rent against appellant-defendant. 2. Brief facts, giving rise to the present appeal are that respondent-plaintiff filed a suit for possession and arrears of rent against appellant-defendant stating that the suit property (shop) situated at Halwai Gali (Chudi Gali) was taken on rent @ Rs.300/- per month. It is also averred that a notice dated 15.06.2015 under the provisions of Transfer of Property Act, 1882, was sent to appellant-defendant terminating the tenancy and the appellant-defendant was asked to handover possession of the shop. In return, appellant-defendant took a plea that the shop in question was taken from Sh. Ladu Lal Gadiya and after his death Gadiya, respondent-plaintiff is not the sole owner of the shop, therefore, consent of all the legal heirs of Sh. Ladu Lal Gadiya is required to evict him from the shop. 3. Learned trial Court, on the basis of pleadings of rival parties, framed issues for determination, and thereafter, rival parties tendered ocular as well as documentary evidence. Learned trial Court, thereafter, proceeded to decide the issues and, after appreciating the evidence available on record, decreed the suit filed by respondent-plaintiff directing the defendant to vacate the suit property and to pay rent of Rs.300/- per month for use and occupation from the date of filing of the suit till handing over possession. 4. The judgment and decree passed by learned trial Court was challenged by appellant-defendant before learned lower appellate Court, and the learned lower appellate Court vide judgment and decree dated 03.05.2019 dismissed the appeal. 5. Learned counsel for the appellant-defendant, upon instructions, submits that the appellant-defendant is not pressing the appeal on merits but craving that a reasonable time may be allowed to him to handover vacant and peaceful possession of the suit property. 6. 5. Learned counsel for the appellant-defendant, upon instructions, submits that the appellant-defendant is not pressing the appeal on merits but craving that a reasonable time may be allowed to him to handover vacant and peaceful possession of the suit property. 6. Learned counsel for the respondent-landlord has very candidly accepted the proposal of learned counsel for the appellant to allow some time to the appellant for vacating the rented premises. After thorough deliberations, learned counsel for the respondent-landlord has agreed to allow a reasonable time to the appellant to vacate the premises latest by 31st of January, 2021 subject to paying mesne profit @ Rs.1000/- per month from 29.08.2017 as determined by learned lower appellate Court till today, and @Rs.4000/- per month from today, i.e., the 8th of August, 2019 till handing over vacant possession of the suit premises to respondent-plaintiff. 7. The aforesaid reasonable period to vacate the premises with mesne profit @Rs.1000/- per month from 03.05.2019 and @Rs.4,000/- from today till handing over vacant possession of the suit premises to respondent-plaintiff is accepted by learned counsel for the appellant without any demure. 8. Accordingly, the present second appeal of the appellantdefendant is closed with a direction to the appellant-defendant to furnish a written undertaking in the trial Court within a month, incorporating following conditions: (i) The appellant-defendant shall hand-over vacant and peaceful possession of the suit property in dispute to the respondent-plaintiff on or before 31st January, 2021 and shall not cause any damage to the rented property and also shall maintain the same as it is and the respondent-plaintiff shall not execute the impugned decree till 31st January, 2021. (ii) The appellant-defendant shall pay arrears of rent as determined by learned trial Court as well as of the mesne profit @ Rs.1000 per month from 29.08.2017 as determined by learned lower appellate Court within six weeks from today and thereafter mesne profit @Rs.4,000/- per month from today uptil vacant possession is handed over to the respondent-landlord. The appellant-tenant shall further continue to pay mesne profit @Rs.4,000/- per month upto 31st January, 2021. The appellant-tenant shall further continue to pay mesne profit @Rs.4,000/- per month upto 31st January, 2021. (iii) The appellant-defendant shall undertake that he will not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of anyone else and would not create any third party interest in the same during the aforesaid period and if he does so, the same will be treated as void. (iv) The respondent-plaintiff will furnish the details of bank account number in which the arrears of rent, mesne profit and regular mesne profit is now to be paid. 9. The appellant shall submit a copy of the undertaking before this Court along with his affidavit. It is made clear that in case the appellant-defendant does not comply with any of the aforesaid conditions, then it will be open for the respondent-plaintiff to get the decree executed forthwith even before the aforesaid date, i.e., 31.01.2021, and the respondent-plaintiff may also initiate contempt proceedings in this Court against the appellantdefendant. With the aforesaid terms, conditions and directions, the present second appeal of the appellant/defendant is, accordingly, disposed of. No costs. 10. A copy of this judgment be sent to the learned Courts below forthwith.