SURINDER KUMAR Vs. MOHAN LAL AND ORS.

JUDGEMENT

(1.) THIS is defendant's Regular Second Appeal against the judgment and decree passed by the learned Lower Appellate Court.

(2.) RESPONDENT Hargopal filed a suit for possession and recovery of arrears of rent against the defendant appellant herein on the ground that the defendant is a tenant in the shop with effect from 10.07.1985. He has defaulted in payment of arrears as he has not paid the arrears of rent since 10.06.1991 at the rate of Rs. 500/ - per month. The plaintiff also claimed that the tenancy is governed by the Transfer of Property Act and notice under Section 106 of the Transfer of Property Act was served upon the respondent. The main contention raised in the plaint is that the Haryana Urban (Control of Rent and Eviction) Act, is not applicable to the tenancy in dispute as the construction of the shop was completed in July, 1985. An amount of Rs. 18,000/ - was also claimed as arrears of rent. The defendant -appellant denied the arrears and also the receipt of notice and claimed that the demised shop was constructed prior to 1984 and it was earlier in possession of one Satpal who was tenant in the shop in question.

(3.) The main question which' came up for consideration was whether the tenancy is governed by the provisions of the Transfer of Property Act and the civil court has the jurisdiction to try the suit. The plaintiff with a view to establish his claim examined Raman Sharma, Parokar as PW -1; Ram Nath Clerk of the Advocate as PW -3 and other witness. The plaintiff also placed on record the copy of the site plan dated 16.08.1984 to establish that the shop was constructed after obtaining sanction from the Municipal Authorities in the year 1985. Raman Sharma, PW -1 appeared and proved that the site plan was sanctioned by the Municipality on the basis of the application of the plaintiff dated 09.04.1984. In response to a specific question as to whether the shop was already in existence, this witness denied the suggestion. The learned trial Court, accordingly, held that the shop was constructed within 10 years from the date of the suit and the provisions of the Haryana Urban (Control of Rent and Eviction) Act, are not applicable. However, the learned trial Court while deciding the issue regarding the service of notice under Section 106 of the Transfer of Property act, came to the conclusion that the tenancy was not validity terminated with the end of the month of the tenancy i.e. 09.08.1994 being the last date, as according to the learned trial Court tenancy commenced with effect from 10.07.1985. On the ground of defective notice, the learned trial Court vide its judgment and decree dated 12.11.2003 dismissed the suit. The plaintiff filed Civil Appeal No. 117 of 2003, in the Court of learned Additional District Judge, Kurukshetra, whereas the defendant filed the cross -objections in the appeal aforesaid. The learned Lower Appellate Court vide its judgment and decree dated 26.10.2004 decreed the suit of the plaintiff and dismissed the Cross -objections. The learned Lower Appellate Court on the basis of the site plan sanctioned on 16.08.1984 accepted the contention of the plaintiff that the shop in question was constructed in July, 1985 and, thus returned a finding that the construction of shop having been constructed within 10 years of the filing of the suit, provisions of the Haryana Urban (Control of Rent and Eviction) Act, are not applicable. The learned Lower Appellate Court also rejected the contention of the appellant -defendant that the shop was constructed somewhere in the year 1971. As a matter of fact, both the sides produced record from the Municipal Committee, Ladwa. The plaintiffs' witness Raman Kumar Sharma proved the site plan dated 16.08.1984 from the record of the Municipality which establish that the site plan of the disputed shop was sanctioned by the Municipality on said date, where the defendant -appellant also produced Mian Singh DW -6, who produced record to establish that the site plan dated 18.04.1971 was sanctioned by the Municipal Committee and stated that the disputed shop was constructed much prior to the period of 10 years preceding the date of the filing of the suit. The learned Lower Appellate Court has considered both these site plans. In the earlier site plan, there was no verandah whereas in the second site plan a verandah and stair case are shown to have been constructed. Therefore, on consideration of both these site plans, learned Lower Appellate Court accepted the plea of the plaintiff and rejected the contention of the appellant -defendant that the shop was constructed beyond 10 years preceding the date of the filing of the suit. The learned Lower Appellate Court came to the conclusion that the tenancy has been validly terminated by giving 15 days clear notice. It has been observed that the defendant never challenged the validity of notice and hence, the notice was validly served.