PRADEEP KUMAR Vs. NAGAR PALIKA PARISHAD, DAMOH.

JUDGEMENT

(1.) EVIDENCE is totally lacking in the case to indicate that any of the appellants have paid rent after expiry of original lease so as to make them a tenant holding over within the meaning of section 116 T. P. Act. It is not difficult to accept the submission that if lease be for a definite term and the lease holder continues in occupation and paying rent after the expiry of the period of lease, he may be treated as a tenant holding over within the meaning of section 116. In Smt. Shanti Devi v. Anil Kumar Banarjee. AIR 1981 SC 1550, it was clarified that section 112 (a) of the TP Act which deals with determination of lease by afflux of time would -be read with section 336 of the Act. It was, therefore, Clearified that the person claiming this status, should make specific case in this behalf. The Court further clarified that in order that a case should be deemed to have been continued in favour of the lease holder, it is necessary to show that he remained in possession of the premises demises after the determination of the lease granted to him arid the lesser had expressly or with necessary implication assented to his continuous possession. In the absence of any such plea of holding over the matter would fall to be governed by section 111 (a) of the T. P. Act. The facts of the present case attract application of the aforesaid proposition laid down by the Supreme Court and therefore the plea that the appellants are holding over, cannot be accepted.

(2.) 1980 JLJ 423 follow the same line of reasoning. There is, therefore, good deal of authority for the proposition that if an objection to the validity of notice was not raised in the pleadings, it cannot be permitted to be raised in appeal. No decision either of this Court or of the Supreme Court laying down a law to the contrary has been brought to the notice of this court and therefore the pica of invalidity of notice u/s 106 T. P. Act cannot be permitted to be raised at this stage. Under the circumstances the appellants do not get any benefit of section 106 T. P. Act and call notice Ex. P -10 cannot be held to be invalid for that reason.

(3.) THE provisions required that in cases where the space is vested in the Government, the permission of the Collector should first be obtained before ordering, removal of the encroachment. Assuming that the land in question had vested in the State Government and for that reason the permission of the Collector was required, the learned lower appellant Court has relied upon the letter to the Collector Ex. C -1 to hold that the notice had been served at the instance of the Collector. The learned counsel for the appellants has not made any submission based on this communication. Then, the witnesses examined by the appellants do not throw any light on the subject. Indeed, none of them even alleged that the notice Ex. P -10 was issued without the direction from the Collector. In this connection, statement contained in Paras 4 and 12 are relevant from which it is clear that the land in occupation of the appellants was required for constructing a public library and the entire project had the approval of the District Collector.