JASBIR SINGH Vs. PRITAM KAUR

JUDGEMENT

(1.) The defendant is in second appeal against the judgment and decree of the Courts below by which suit of the plaintiff for possession by way of ejectment of the defendant from the shop in dispute, has been decreed.

(2.) In short, the plaintiff is the owner of the shop in dispute which was let out to the defendant about 20 years back by way of an oral agreement. It was alleged that the present rate of rent of the shop in dispute is 600 per month which was to be paid by the defendant between 1st to 5th day of every month. The defendant has been running the shop under the name and style of "Sardar Electric". The plaintiff terminated the tenancy of the defendant by serving a legal notice dated 23.04.2007 as the defendant was not paying the rent regularly and the tenanted premises were required by the plaintiff for her personal use. The said notice was not replied by the defendant. In the written statement, the defendant had alleged that the shop in dispute was on rent with him @ 600 per month. He alleged that he has been paying the rent regularly, but the plaintiff has not issued receipt. It was also alleged that the defendant has deposited a sum of 20,000 as security with the plaintiff in the month of January 2005, which is refundable on vacation of the shop in dispute. It was denied that the shop in dispute is required by the plaintiff for her personal use. On the pleadings of the parties, issues were framed on 07.12.2007. The plaintiff examined Kuldeep Singh Draftsman as PW1, herself appeared as PW2 and examined Daljit Kaur as PW3, whereas, the defendant examined Jaspal Singh as DW1 and himself appeared as DW2.

(3.) Learned Courts below, after appreciating the evidence on record, decreed the suit of the plaintiff. The learned First Appellate Court had observed that, admittedly, the plaintiff is the landlady and owner of the shop in dispute, whereas defendant No.1 was the tenant @ 600 per month. The tenancy stood terminated by serving notice under Section 106 of the Transfer of Property Act, 1882 [for short "the Act"] which was sent to the defendant through registered post. The registered letter was never received back, therefore, there was a presumption that the notice has been duly served upon the defendant. The learned First Appellate Court has also relied upon a decision of the Supreme Court in the case of Jaswant Rai Soni Vs. Parkash Mal,2005 2 ACJ 440 to the effect that there is no legal requirement for issuance of a notice under Section 106 of the Act before institution of eviction petition. It was held that with the service of notice, tenancy of the defendant stood terminated and the plaintiff was entitled to possession of the shop in dispute. As regards arrears of the rent, the plaintiff appeared as PW2 and admitted that the defendant has paid rent of the demised shop up to April 2007. It was, thus, held that the plaintiff is not entitled to recover arrears of rent. As regards mesne profits for illegal use and occupation of the demised shop, the said finding was also partly reversed by the learned First Appellate Court to hold that the plaintiff is entitled to mesne profit from the month of May 2007 onwards till the vacant possession of the shop in dispute is handed over to the plaintiff.